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Digitized  by  the  Internet  Archive 

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http://www.archive.org/details/consularcasesopiOOstow 


I 


CONSULAR  CASES  AND  OPINIONS 

FROM    THE 

DECISIONS  OF  THE  ENGLISH  AND  AMERICAN  COURTS 

AND   THE 

OPINIONS  OF  THE  ATTORNEYS  GENERAL 


BY 

ELLERY  C.  STOWELL 

Docteur  en  droit  (Paris) 

Graduate  of  the  Ecole  Libre  des  Sciences  Politiques 

Secretary  of  the  College  of  the  Political  Sciences,  Washington,  D.C. 


JOHN  BYRNE  &  CO. 

1322  F  St.,  N.W. 

WASHINGTON,  D.  C. 

1909 


COPYEIGHT,  1909 
BY  ELLERY  C.  STOWELL 


A 

MON  CHER  MAITRE 

M.  LOUIS  RENAULT 


*k 


PREFACE 

This  book  aims  to  furnish  a  convenient  collection  of  the  British 
and  American  cases  and  opinions  relating  to  consuls.  A  few  im- 
portant cases  have  been  given  in  full.  In  general,  however,  only  the 
opinion  or  an  extract  relating  to  consuls  is  given.  In  certain  in- 
stances where  the  case  appeared  of  little  importance  or  was  of  great 
length,  a  brief  summary  enclosed  in  parenthesis  has  been  made. 
All  extracts  are  clearly  indicated. 

The  Opinions  of  the  Attorneys  General  relating  to  consular  af- 
'^  fairs  have  been  added  because  of  their  judicial  nature  and  the  con- 
venience of  having  them  in  one  volume.  Few  students  and  lawyers 
have  access  to  the  twenty  odd  volumes  which  contain  the  opinions 
published  since  the  office  was  established.  Another  reason  for  in- 
cluding these  opinions  or  decisions  of  the  head  of  the  Department  of 
Justice  was  to  reproduce  the  very  remarkable  opinions  of  Caleb 
Gushing.  He  understood  the  real  nature  of  the  consular  office  and 
fifty  years  of  study  and  experience  have  made  it  possible  to  add  but 
little  to  what  he  wrote.  If  this  collection  can  make  his  opinions  and 
conceptions  of  the  consular  office  more  widely  known  and  appreciated, 
it  will  be  justification  enough  for  the  publication. 

The  indexes  to  the  Revised  Statutes  and  Statutes  at  Large  are 

taken  from  the  Index  Analysis  of  the  Federal  Statutes  of  Scott  and 

V;;^    Beaman  and  the  Consolidated  Index  of  Federal  Statutes,  so  as  to 

^      gather  in  a  small  compass  what  those  ponderous  volumes  contain  about 

^      consuls.     The  Consolidated  Index  has  not  been  distributed  and  only 

a  few  copies  are  in  existence. 

Those  who  wish  to  make  a  study  of  any  section  of  the  statutes 
are  referred  to  The  Federal  Statutes  Annotated  and  to  the  tables  of 
repeals  and  amendments  contained  in  Scott  and  Beaman 's  Index. 

In  the  compendium  at  the  end  an  attempt  has  been  made  to  give 
extracts  and  references  in  such  a  manner  as  to  make  the  important 
points  in  the  cases  and  opinions  stand  out.  To  this  end  the  classifica- 
tion, already  explained  in  Le  Consul  *  has,  with  some  slight  modifica- 
tions, been  followed. 

Consular  Functions  as  the  foundation  and  object  of  the  consular 
office  and  the  reason  for  its  existence  come  first.    The  Consul's  Func- 

*Le  Consul   (Pedone),  Paris,  1909. 

vii 


0 


PREFACE 

tions  are  themselves  classified  according  as  the  consul's  reason  for  act- 
ing is  primarily  the  direct  interest  of  a  citizen  or  the  general  interest 
of  the  sending  state,  and  this  latter  division  is  again  divided  into 
Representative,  Administrative,  and  Judicial  Functions. 

Consular  Immmiities,  making  possible  the  discharge  of  the  con- 
sular office  within  the  receiving  state,  follow  logically. 

The  Organization  of  the  service  enables  the  government  of  the 
sending  state  to  choose,  retain,  and  direct  its  agents. 

Certain  Legislation  on  the  part  of  the  sending  state  is  necessary 
to  give  adequate  protection  to  consuls  and  compel  its  nationals  to 
comply  with  the  regulations  which  the  consul  is  directed  to  carry  out. 

Consuls  must  receive  the  consent  of  the  receiving  state  before 
entering  upon  the  discharge  of  their  duties,  and  before  they  can  be 
entitled  to  the  inunimities  granted  by  treaties  and  international  law. 

It  only  remains  to  examine  the  Termination  of  consular  establish- 
ments and  the  consular  office  to  be  in  a  position  to  understand  the  true 
nature  of  the  consul  and  to  give  a  Definition. 

Such  is  in  outline  the  system  of  classification  of  the  compendium. 
The  index  will  make  it  possible  to  find  the  references  to  any  particular 
question  without  understanding  the  logic  of  the  classification. 

The  translation  of  the  Regulations  Adopted  by  the  Institute  of 
International  Law  has  been  made  for  those  who  do  not  read  French. 
Everj'  effort  has  been  made  to  adhere  as  closely  as  possible  to  the 
original  except  that  here,  as  elsewhere,  the  terms  Receiving  State  and 
Sending  State  have  been  emploj^ed  because  of  the  great  convenience 
of  so  doing.  The  term  Consular  Agent  to  designate  merchant  consuls 
(Consules  Electi)  is  gaining  general  acceptance.  Perhaps  Consuls  of 
Career  (Consules  Missi)  might  be  designated  as  Despatched  Consuls 
where  spoken  of  in  contradistinction  to  Consular  Agents.  A  further 
beneficial  distinction  might  be  made  by  designating  as  Immunities 
those  rights  and  exemptions  which  the  receiving  state  grants  consuls 
of  the  sending  state,  and  Privileges  any  privileged  treatment,  favor 
or  exemption  which  the  sending  state  accords  its  own  consuls. 

An  effort  has  been  made  to  exclude  all  cases  and  opinions  refer- 
ring to  the  exercise  of  exterritorial  jurisdiction,  because  this  branch  of 
the  consular  service  of  the  different  countries  has  been  more  carefully 
studied,  and  also  because  of  its  peculiar  nature.  It  may  be  a  ques- 
tion whether  consular  exterritorial  jurisdiction  is  destined  to  dis- 
appear entirely.  The  indications  at  present,  however,  seem  to  point 
to  its  abolition  in  all  states  of  any  importance. 

When  referring  to  the  cases  contained  in  this  volume  it  must  be 
borne  in  mind  that  any  decision  may  have  been  reversed  in  some 
later  case  or  rendered  inapplicable  by  legislative  action. 

viii 


PREFACE 

No  distinction  between  the  obiter  dicta  and  the  holdings  of  the 
courts  has  been  attempted,  but  a  list  of  citations  has  been  added  which 
will  aid  in  reaching  a  conclusion  as  to  what  was  really  held,  where 
the  case  presents  any  difficulties  of  interpretation. 

I  would  express  my  thanks  and  my  great  indebtedness  to  Mr, 
Herbert  Putnam,  Librarian  of  Congress,  and  to  Mr.  Middleton  G. 
Beaman,  Law  Librarian,  for  the  facilities  which  they  have  so  kindly 
placed  at  my  disposal. 


WASHINGTON,  D.  C,  JULY,  1909. 


IX 


TABLE  OF  CONTENTS 


LIST  OF  ABBREVIATIONS  xii 

ALPHABETICAL  LIST  OF  CASES                                                             '  xv 

CHEONOLOGICAL  LIST  OF  CASES  xxii 

TABLE  OF  JUDGES  WITH  CASES  xxix 

TABLE  OF  THE  OPINIONS  OF  THE  ATTORNEYS  GENERAL  xxxv 
REGULATIONS  OF  THE  INSTITUTE  OF  INTERNATIONAL  LAW 

RELATING  TO  CONSULAR  IMMUNITIES  1 
CASES  RELATING  TO  CONSULS  (alphabetically  arranged)  6 
OPINIONS  OF  THE  ATTORNEYS  GENERAL  RELATING  TO  CON- 
SULS (chronologically  arranged)  463 
ANALYSIS  OF  TREATIES  653 
INDEX  ANALYSIS  OF  THE  FEDERAL  STATUTES  RELATING  TO 

CONSULS  666 
CONSOLIDATED    INDEX    TO    UNITED    STATES    STATUTES    AT 

LARGE  687 

COMPENDIUM  OF  CASES  AND  OPINIONS  721 

TABLE  OF  CASES  CITED  781 

INDEX  783 


LIST  OF  ABBREVIATIONS 


Abb.    Adm.  Abbott's  Admiralty,  United  States  District  Court. 

Add.  Addanis,  Ecclesiastical  Courts. 

Allen  Allen,  Massachusetts  Supreme  Court. 

Am.  St.  Rep.  American  State  Reports. 

Aapin.  Maritime  Cases,  New  Series  (Aspinall)   Admiralty. 

Atl.  Atlantic  Reporter. 

Attv.  Gen.  Opinions  of  the  Attorneys  General. 


Barb. 

Bay 

Bee 

Ben. 
Binn. 

Blatchf. 
Blatchf.    &    H. 

Burr. 

Cal. 

Car.  &  P. 

Crabbe 

Cranch 

Ct.  CI. 

Curt. 

Curt.    EccL 

Ball. 

De  G.,  M.  &  G. 

Dod. 

Dutch. 

East 

East. 

Edwards 

Eng.  Rep. 

Esp. 

Fed.    Cases 

Fed.   Rep. 

Ga. 

Gilp. 

Green 

H.  &  M. 
Hag.  Adm. 


Barbour,  New  York  Supreme  Court. 
Bay,  South  Carolina,  Various  Courts. 
Bee's  Admiralty,  United  States  District  Courts. 
Benedict,  United  States  District  Court. 
Binney,  Pennsylvania  Supreme  Court. 
Blatchford,  United  States  Circuit  Court. 
Blatchf ord  and  Howland's  Admiralty,  United  States  Dis- 
trict Court. 
Burrow,  King's  Bench  178-182. 

California  Supreme  Court. 

Carrington  and  Payne's  Reports. 

Crabbe,  United  States  District  Court. 

Cranch,  United  States  Supreme  Court. 

Court  of  Claims,  United  States. 

Curtis,  United  States  Circuit  Court. 

Curteis  Ecclesiastical. 

Dallas,   United  States  Supreme   Court   and  Circuit  Courts, 

and  Courts  of  Pennsylvania. 
De  Grex,  McNaughten  &  Gordon. 
Dodson,  Admiralty. 
Dutcher,  New  Jersey  Supreme  Court. 

East,  King's  Bench. 
Eastern  Reporter. 
Edwards,  Admiralty. 
English  Reports,  Full  Reprint. 
Espinasso's  Reports. 
Federal  Cases. 
Federal  Reporter. 

Georgia  Supreme  Court. 

Gilpin,  United  States  District  Court. 

Green  (.J.  8.),  New  Jersey  Supreme  Court. 

Hemmming  and  Miller. 
Haggard,  Admiralty. 


zu 


LIST  OF  ABBREVIATIONS 

Hill  Hill 's  Keports,  New  York. 

Holmes  Holmes,  United  States  Circuit  Court. 

How.  Howard,  United  States  Supreme  Court. 

Johns.  Johnson,  New  York  Supreme  Court  and  Court  of  Errors. 

L.  Ed.  Layers'    Co-operative    Edition    of    United   States    Supreme 

Court  Reports. 

L.  J.  Adm.  Law  Journal,  Admiralty. 

L.  R.  P.  C.  Law  Reports:  Privy  Council  Appeal  Cases. 

L.  R.  P.  &  D.  Law  Reports,  Probate  and  Divorce  Cases. 

L.  T.  N.  S.  Law  Times  Reports,  New  Series,  All  the  Courts. 

La.  An.  Louisiana  Annual,  Louisiana  Supreme  Court. 

Law  Rep.  Law  Reporter    (Boston). 

Leg.  Int.  Legal  Intelligencer. 

Litt.  Littell,  Kentucky  Court  of  Appeals. 

Low.  Lowell,  United  States  District  Court. 

Lush.  Lushington,  Admiralty, 

McAllister  McAllister,  United  States  Circuit  Court. 

Mas.  Mason,  United  States  Circuit  Court. 

Mass.  Massachusetts  Supreme  Court. 

Mau.  &  Sel.  Maule  and  Selwyn,  King's  Bench  214-219. 

Misc.  New  York  Miscellaneous  Reports. 

Moore  Moore's  International  Law  Digest. 

Moore   Int.   Arb.  Moore's  International  Arbitrations. 

N.  E.  Northeastern  Reporter. 

N.  J.  Law.  New  Jersey  Supreme   Court   of   Errors  and  Court  of  Ap- 
peals. 

N.  W.  Northwestern  Reporter. 

N.  Y.  New  York  Court  of  Appeals  Reports. 

N.  Y.  Supp.  New  York  Supplement. 

Newb.  Newberry's  Admiralty,  United  States  District  Courts. 

Nott.  &  McC.  Nott  and  McCord,  South  Carolina  Constitutional  Court. 


01c.  Olcott,  United  States  District  Court. 

P.  D.  Probate  Division,  Law  Reports. 

Pa.  Pennsylvania  Supreme  Court  Reports. 

Pac.  Pacific  Reporter. 

Paine  Paine,  United  States  Circuit  Court. 

Pet.  Peter's,  United  States  Supreme  Court. 

Pet.  Ad.  Peter's  Admiralty  Decisions,  United  States  District  Court. 

Phila.  Philadelphia  Reports. 

Phillim.    (2d)  Phillimore  International  Law,  2d  Edition. 

Pick.  Pickering,  Massachusetts  Supreme  Court. 

Pr.  &  Div.  Law  Reports:  Probate  and  Divorce. 

Rob.  Robinson,  Louisiana  Reports. 

Rob.  C.  Robinson,  C.  Admiralty  Reports. 

Eob.  W.  Robinson,  W.  Admiralty  Reports. 

xiii 


LIST  OF  xVBBREVIATIONS 

Rv.  &  M.  Ryan  and  Moody's  Reports. 

S.  E.  Southeastern  Reporter. 

S.  &  R.  Sergjeaut  and  Rawle  's  Reports,  Pennsylvania. 

Sani  Sandford,  New  York  City  Superior  Court. 

Sawy.  Sawyer,  United  States  Circuit  and  District  Courts. 

So.  Southern  Reporter. 

Sprague  Sprague's  Decisions,  United  States  District  Court. 

Sumn.  Sumner,  United  States  Circuit  Court. 

Sup.  Ct.  Rep.  Supreme  Court  Reporter. 

Super.   Ct.  Superior  Court  Reports,  New  York. 

Taney  Taney's  Decisions,  United  States  Circuit  Court. 

Taunt.  Taunton's  Law  Reports,  Common  Pleas. 

Tex.   App.  Texas  Court  of  Appeals  Reports. 

Tex.  Civ.  App.  Texas  Civil  Appeal  Reports. 


U.  S. 

V.  s. 


United  States  Supreme  Court  Reports. 
United  States. 


V. 

Ves. 


&  Bea. 


versus  or  against. 

Vesey  and  Beames,  Chancery  Reports. 


"Wall.  Wallace,  United  States  Supreme  Court. 

"Ware  Ware,  United  States  Circuit  Court. 

Wash.   C.  C.  Washington,  United  States  Circuit  Court. 

Whart.  Wharton,  Pennsylvania  Supreme  Court. 

Wheat.  Wheaton  's.  United  States  Supreme  Court. 

Wis.  Wisconsin  Supreme  Court. 

Woodb.  &  M.  Woodbury  and  Minot,  United  States  Circuit  Court. 


XIV 


CASES  ALPHABETICALLY  ARRANGED 


Adams   v.   State,    1885     6 

Adolph,    The,    1835     6 

Adolph,    The,    1851     6 

Adutt,   In   re,   1893    6 

Agincourt,   The,   1877    6 

Albretcht    v.    Sussman,    1813    7 

Alexandra,    The,    1906     7 

Alice,   The,   1882    7 

Alnwick,    The,    1904    9 

Amalia,   The,    1880    9 

Anne,   The,   1818    11 

Anne   Cooper,  In  re,   1855    120 

Antelope,    The,    1825    19 

Arnold  v.  The  United  Insurance  Company,  1800   19 

Aspinwall  v.  The  Queen 's  Proctor,  1839   20 

Atlantic,    The,    1849 22 

Aubrey,  In  re,   1885    26 

Aycinena,  In  the  Matter  of,  1848   29 

Azogue  V.  United  States,  1891 30 

Baiz,    In   re,    1890     33 

Baiz  V.  Malo,    1899     51 

Baltica,   The,    1855    51 

Barber   (Trustees  of  Mrs.),  1835    51 

Barbuit  's    Case,    1737    52 

Becherdass    Ambaidass,    The,    1871     54 

Bee,    The,    1804     54 

Belgenland,  The,  1884    55 

Bello  Corrunes,  The,  1821   68 

Benito  Estenger,  The,   1900    70 

Benson  v.  McMahon,   1887    70 

Bernard   v.    Creene,    1874    70 

Betty  Cathcart,  The,  1799    72 

Bird,  Ex  parte,  1852   72 

Bischoffscheim  v.  Baltzer,  1882    73 

Bixby  V,  Janssen,  1869    73 

Blanche  v.  Eangel  (The  Nina),  1868   74 

Bors  V.   Preston,   1884    74 

Brown  v.  Landon,   1883    82 

Brown  v.   The  Independence,   1836    83 

Browne  v.  Palmer,  1902   83 

Brunent  v.    Taber,    1854    83 

Bucker  v.   Klorkgeter,   1849    83 

Burchard,    The,    1890    84 

Byers  v.  United  States,  1887   84 

XV 


LIST  OF  CASES 

Cai^et  V.  Pettit,  1795  84 

Caldwell  v.  Barclay,  17S8   86 

Gallon   V.    Williams,    1871    87 

Campbell  v.  Steamer  Uncle  Sam,  1856   90 

Carolina,  The,  see  Fry  v.  Cook,  1876   90 

Castro  V.  De  Uriarte,  1883  91 

Catlett  V.  Pacific  Insurance  Company,  1826    98 

(Las)  Caygas  v.  Larionda's  Syndic,  1816   98 

Charlotte,'  The,    1804    98 

Chester  v.   Benncr,   1871    98 

Church  V.   Hubbart,   1804    99 

Clarke  v.  Cretico,   1808    105 

Coffin  V.  Weld,  1871   107 

Cohens  v.   Virginia,   1821    108 

Colebrook  v.  Jones,  1751   112 

Commonwealth  v.  Di  Silvestro,  1906   112 

Commonwealth  v.  Kosloflf,  1816    112 

Conserva,    The,    1889    119 

Cooke  V.   Wilby,   1884    120 

Cooper,  In  re  Anne,  1855  120 

Coppell  V.   Hall,    1868    120 

Coriolanus,  The,  1839    120 

Courtney,    The,    1810    121 

Cruttenden  v.  Bourbell,  1808    121 

Dainese   v.    Hale,    1875    122 

Dallemagne   v.   Moisan,    1904    123 

Daly,    In    re,    1841    128 

Darling,  In  re,    1845    128 

Davenport,  In  re,   1904 129 

Davis   V.    Leslie,    1848    129 

Davis  V.   The  Burchard,    1890    84 

Da\T8  V.   Packard,    1832    130 

Davis  V.   Packard,    1833    133 

Davy  to   Maltwood,    1841    137 

De  Give  v.  Grand  Eapids  Furniture  Company,  1894   139 

De  Lema  v.  Haldimand,   1824    139 

Dent  V.  Smith,   1869    139 

Dillon,    In    re,    1854    139 

Divina  Pastora,  The,   1819    148 

Dree  Gebroeders,  The,  v.  Vandyk,  1802   148 

Dufour,   Succession   of,    1855    148 

Domas,  Interdiction  of  Joseph,  1880    149 

Durand   v.    Ilalbach,    1835    149 

Eady,   In    rp,    1 838    150 

Elizabeth,    The,    1862    151 

Elwin    Kreplin,    The,    1870    151 

Elwine    Kreplin,    The,    1872    152 

Eudora,    The,    1901     152 

Evangelistria,    The,    1876    154 

Falcon,    The,    1805     154 

Falls   of   Keltie,    The,    1902    154 

Farez,  In  re  Francois,  1870   155 

2:vi 


LIST  OF  CASES 

Farmer,  Succession  of,  1862   155 

Fattosini,  Matter  of,  1900    155 

Fawcus,  In  the  Goods  of,  1884  158 

Ferrers  v,  Bosel,  1821    159 

Ferrie  v.  The  Public  Administrator,  1855    160 

Flad  Oyen,  The,   1799    160 

Flynn  v.  Stoughton,   1848    161 

Foel  V.  The  Salomoni,  1886    161 

Forsoket,   The,   1801    457 

Foster   v.    Davis,    1822    162 

Francois  Farez,  In  re,  1870   164 

Franz  and  Elize,  The,  1861    164 

Froment  v,  Duclos,  1887    164 

Fry  V.   Cook,    1876    164 

Gardner   v.    Bibbins,    1833    164 

General  McPherson,   The,   1900    165 

Gernon  v.    Cochran,    1804    165 

Gittings  V.  Crawford,   1838    165 

Glass  V.  The  Sloop  Betsey,  1794 172 

Goddard  v.  Luby,  1795   173 

Goldsborough  v.  United  States,  1889    173 

Golubchick,   The,   1840    173 

Gould  V.   Staples,   1881    178 

Graham   v,    Hoskins,    1845    179 

Graham  v.  Stucken,   1857    179 

Graves  v.  The  W.  F.  Babcock,  1897   181 

Griffin  v.   Dominguez,    1853    182 

Grin,  In  re,  1901    183 

Grin  v.  Shine,  1902    183 

Haggitt  V.    Iniff,    1854    184 

Hall  V.  Young,  1825    184 

Harrison  v.  Vose,  1849    185 

Hathaway   v.    Jones,    1863    186 

Havana,    The,    1858    186 

Hayes  v.  J.  J,  Wickwire,  1870    186 

Heathfield  v.    Chilton,    1767    187 

Herman   v.    Herman,    1825    188 

Herres,  In  re,   1887    188 

Herzogin  Marie,   The,   1861    188 

Heynsohn  v.  Merriman,  1880    189 

Hill   v.    The    Sachem,    1894    189 

Hinde,  Succession  of,  1861    : 190 

Hindsgaul  v.  The  Lyman  D.  Foster,  1898   190 

Hitz,  Ex  parte,  1884    190 

Hollander  v,  Baiz,   1890    190 

Hope,    The,    1813    190 

Hutchinson,  Ex  parte,   1848    191 

Hutchinson   v.   Coombs,    1825    192 

lasigi,  In  re,   1897    192 

lasigi  v.  Van  de  Carr,  1897   197 

Indian  Chief,   The,   1800    197 

Infanta,  The,  1848   198 

xvii 


LIST  OF  CASES 

Invincible,    The,    1816     199 

.Tenks  v.  Cox,  1872    199 

Jones   V.   Le   Tombe,    1798    199 

Jordan   v.   Williams,   1851    201 

Josephine,   The,    1801    213 

Kaine.   In   re,   1852    213 

Kaninierhevie  v.   Roscnkrants,  1822    214 

Kelly   V.   The   Topsy,    1890    214 

Kennoy   v.   Blake,    1903    214 

Kent  V.  Burgess,  1841    214 

Kessler  v.    Best,    1903    214 

Kestor,    The,    1901    216 

Kidderlin   v.   Meyer,   1838    216 

Koppel   V.   Heinrichs,    1847    216 

La  Blache  v.  Rangel,  The,  1867    219 

Lady   Furness,   The,   1897    219 

Lamb  v.  Briard,   1848    219 

Lanfear   v.   Ritchie,    1854    224 

Las  Caygas  v.  Larionda  's  Syndic,  1816   224 

Leavitt  v.  United  States,   1888    224 

Leon    XIIT,    The,    1883    229 

Leveux  v.  Berkeley,  1844   230 

Le\7    V.    Burley,    1836    230 

Lewis  V.  Jewhurst,   1 866    235 

Lilian   M.  Vigus,   The,   1879    235 

Lilla,    The,    1862    235 

Lobrasciano  's  Estate,  In  re,  1902    235 

Logiorato  's  Estate,  In  re,   1901    244 

London  Packet,   The,   1815    247 

Long  V.  Powell,  1904   247 

I>oring    V.    Thorndikc,    1862     247 

Lorway   v.   Lousada,   1866    252 

Luscom   V.   Osgood,   1844    252 

Lynch    V.   Crowder,    1849    252 

McCandless    v.    Yorkshire,    1897     252 

M  'Donough   v.   Danncry,    1796    253 

McKay  v.  Garcia,   1873    254 

Madonna  d '  Idra,  1811    255 

Magee,    In   re,    1885    255 

Magee  v.  The  Moss,  1831    255 

Mahin  v.  United  States,   1905    255 

Mahoney  v.   United  States,   1869    255 

Mali  V.  Keeper  of  the  Common  Jail   255 

Mannhardt  v.   Soderstrom,    1806    256 

Marie,    The,    1892    259 

Marine  Wharf  v.  Parsons,  1897   259 

Marshall   v.    Critico,    1808    281 

Marston  v.  United  States,  1896   281 

Mary,  The,   1828    281 

Mary  Ford,  The,   1796   281 

Matheson   v.   Campbell,    1895    282 

Mathews  v.  United  States,  1887   282 

xviii 


LIST  OF  CASES 

Matthews  v.   Offley,    1837    282 

Miller  v.  Van  Loben  Sells,  1885    283 

Moore  v.  Miller,  1892    283 

Morris  v.   Cornell,   1843    283 

Mosby  V.  United  States,  1888  284 

Motherwell  v.  United  States,   1901    284 

Mott   V.   Smith,    1860    284 

Neck,   The,   1905    284 

New    City,    The,    1891    284 

Newman,  Ex  parte,  1871   285 

Niboyet  v.  Niboyet,  1878    285 

Nina,    The,    1867     285 

Norberg   v.    Hillgreu,    1846    290 

Octavie,   The,    1863    292 

Oester  Ems,  The,  see  Two  Friends,  1799  376 

Ornelas  v.   Euiz,    1895    292 

One  Hundred  and  Ninety-four  Shawls,  1848    292 

Orr  V.  The  Achsah,  1849   293 

Oscanyan  v.  Arms  Company,  1880   293 

Otterbourg's  Case,   1869    294 

Parsons   v.    Hunter,    1836    294 

Patch  V.  Marshall,   1853    294 

Patterson  v.  Bark  Eudora,  1903   296 

Paul   Revere,    The,    1882    304 

Peterson 's  Will,   In  re,   1906    308 

Pioneer,    The,    1863     310 

Pool   V.   Welsh,    1830    310 

Pooley   V.   Luco,    1896    310 

Popping   V.    The   Sirius,    1891    315 

Potter  V,  Ocean  Insurance  Company,  1837   315 

President,   The,   1804    316 

Rabasse,   Succession    of,    1895    316 

Redmond  v.  Smith,  1899    318 

Reliance,   The,   1848    318 

Rice  V.   Ames,   1900    318 

Riley  v.  The  Obeli  Mitchell,  1861   319 

Robert  Ritson,  The,  1871    319 

Roberts   v.    Eddington,    1801    319 

Robson  V.  The  Huntress,  1851   320 

Rogers  v.  Amado,  1847    320 

Roth,  In  re,   1883    320 

Rowe  V.  The  Brig,  1818    321 

Sachem,  The,   1894    321 

Sagory  v.  Wissman,  1868    321 

St.  John  V.  Croel,  1843    321 

St.  Luke 's  Hospital  v.  Barclay,  1855   322 

St.  Oloff,  The,  see  Weiberg  v.  St.  Oloff 

Salomoni,    The,    1886    323 

Sartori   v.   Hamilton,    1832    323 

Saunders  v.  The  Victoria,  1854   325 

Savage  v.  Birckhead,  1838    326 

Scanlan  v.   Wright,    1833    326 

xix 


LIST  OF  CASES 

Schunior  v.  Russell,   1S92    328 

Scott  V.  Hobe,  1900    329 

Seidel  v.  Pesclikaw,   1S59    330 

Semmens  v.   Walters,   1S82    332 

Sharpe  and  Sharpe  v.  Crispin,  1869   333 

Shorey  v.  Rennell,  1858   333 

Sidy  Haniet  Benamor  Bcggia,  (Case  of),  1822  333 

Simpson  v.  Foge,  1862   333 

Sirius,  The,  1891    334 

Smith   V.    Treat,    1845    334 

Snow   V.   Wope,    1855    334 

Sorcnsen  v.  The  Queen,  1857    334 

Spanish  Consul  "s  Petition,   1867    334 

Stahel  V.  United  States,   1891    335 

State  V.  De  La  Foret,  1820   337 

Stein  V.   Bowman,   1839    349 

Stein  V.  Stein 's  Curator,   1836    351 

Stewart  v.  Linton,   1902    351 

Stiff  V.   Nugent,   1843    354 

Sturgis  V.  Slacum,  1836   354 

Sugenheimer,    In   re,    1899    359 

Tartaglio,   In    re,    1895    360 

Telefsen  v.   Fee,    1897    362 

Thorovich  v.  Franz  Josef,  1907   269 

Thompson  v.  The  Nanny,   1805   369 

Thompson 's  Succession,  1854    369 

Tingle  v.  Tucker,   1849    369 

Toler   V.    White,    1834    373 

Topsy,  The,    1890    374 

Townshend  v.  The  Mina,  1868   374 

Triquet  v.   Bath,   1761    375 

Troop,    The,    1902    376 

Two  Friends,  The,  1799   376 

United  States  v.  Badeau,   1887    376 

United  States  v.   Bee,   1893    379 

United  States  v.  Eaton,  1898   379 

United  States  v.  Judge  Lawrence,  1795  396 

United  States  v.  Kelly,  1901   407 

United  States  v.  Lucinario,   1906    410 

United  States  v.  Lunt,  1855    410 

United  States  v.  Mitchell,  1886   410 

United  States  v.  Mosby,  1889  410 

United  States  v.  Motherwell,  1900  410 

United  States  v.  Ortega,  1826   411 

United  States  v.  Owen,  1891    415 

United  States  v.  Kavara,  1793   415 

United  States  v.  Trumbull,  1891    418 

Valarino  v.  Thompson,  1 853    418 

Van  Hoven,  Ex  parte  Henry,  1876   423 

Vergil,  In  re,  1857    423 

Villeneuve  v.  Barrion,   1795    86 

Viveaah  v.  Becker,   1814   423 

ZX 


LIST  OF  CASES 

Von  Thodorovich  v.  Franz  Josef  Beneficial  Ass'n.,  1907 432 

Vrow  Anna  Catharina,  The,  1803    436 

Waitshoair  v.  The  Craigend,  1890   436 

Waldron   v.    Coombe,    1810    436 

Walter  D.  Wallet,   The,   1895    439 

Wedderburn,   Succession   of,   1841    440 

Weiberg  v.  The  St.  Oloff,  1790   440 

Welhaven,   The,   1892    446 

Welsh  V.  Hill,   1807    446 

W.  L.  White,  The,  1885   447 

Wilbor  V.   United  States,   1902    447 

Wilcox  V,  Luco,   1896   447 

Wilcox   V.   Luco,    1897    447 

Wildenhus's    Case,    1886    447 

Wildenhus,  In  re,  1886   457 

Wilhehn  Frederick,  The,  1823    457 

Willendson  v.   Forsoket,   1801    457 

William  Harris,   The,   1837    458 

Williams  v.  The  Welhaven,  1892   459 

Wilson  V.  The  Mary,  1828   459 

Wope  V.  Hemenway,  1855   459 

Wyman,  In  re,  1906    460 


xn. 


CHRONOLOGICAL  LIST  OF  CASES 


Date  Country                                             Name   of   Case  Page 

1737     Great  Britain Barbuit's    Case    52 

1751     Great  Britain Colebrook  v.  Jones    112 

1761     Great  Britain Triquet  v.  Bath   375 

1767     Great  Britain Heathfield  v.   Chilton    187 

1788     United  States Caldwell  v.  Barclay    86 

1790     United  States Weiberg  v.  The  St.  Olotf 440 

1793  United  States United  States  v.  Eavara  415 

1794  United  States Glass  v.  The  Betsey   172 

1795  United  States Caignet  v.   Pettit    84 

1795     United  States Goddard  v.  Luby   173 

1795     United  States United  States  v.  Judge  Lawrence   396 

1795  United  States Villeneuvre  v.  Barrion   86 

1796  United  States M'Donough  v.   Dannery    253 

1796     United  States Mary  Ford,  The    281 

1798  United  States Jones  v.  Le  Tombe    199 

1799  Great  Britain Betty  Cathcart,  The   72 

1799     Great  Britain Flad   Oyen,   The    160 

1799  Great  Britain Two    Friends    376 

1800  United  States Arnold  v.  The  United  Insurance  Company  .  .  19 

1800  Great  Britain Indian    Chief,    The    197 

1801  Great  Britain Josephine,    The    213 

1801     Great  Britain Roberts  v.  Eddington   319 

1801  United  States Willendson  v.  The  Forsoket   457 

1802  Great  Britain Dree  Gebroeders,  The,  v.  Vandyk  148 

1803  Great  Britain Vrow  Anna  Catharina,  The  436 

1804  United  States Bee,  The    54 

1804     Great  Britain Charlotte,   The 98 

1804     United  States Church    v,    Hubbart    99 

1804     United  States Gernon  v.  Cochran    165 

1804  Great  Britain President,    The     316 

1805  Great  Britain Falcon,   The    154 

1805  United  States Thompson  v.  The  Nanny   369 

1806  United  States Mannhardt  v.  Soderstrom   256 

1807  United  States Welsh    v.    Hill    446 

1808  Great  Britain Clark    v.    Cretico    105 

1808     Great  Britain Cruttenden   v.   Bourbcll    121 

1808     Great  Britain Marshall  v.  Cretico   281 

1810     Great  Britain Courtney,    The    121 

1810  Great  Britain Waldron  v.  Coombe    436 

1811  Great  Britain Madonna  d'  Idra    255 

1813     Great  Britain Albrecht  v.  Sussman   7 

1813  Great  Britain Hope,    The    190 

1814  Great  Britain Viveash  v.  Becker   423 

XXii 


CHRONOLOGICAL  LIST 

Date  Country                                             Name   of   Case  Page 

1815  United  States London  Packet,  The  247 

1816  United  States (Las)  Caygas  v.  Lorionda's  Syndic  98 

1816     United  States Commonwealth  v.   Kosloff    112 

1816     United  States Invincible,    The    199 

1818     United  States Anne,    The    11 

1818  United  States Rowe  v.   The   Brig    321 

1819  United  States Divina   Pastoria,    The    148 

1820  United  States State  v.  De  La  Foret    337 

1821  United  States Bello  Corrunes,  The   68 

1821     United  States Cohens  v.   Virginia    108 

1821  United  States Ferrers  v.   Bosel    159 

1822  United  States Foster  v.  Davis   162 

1822     Great  Britain Kammerhevie    v.    Rosenkrants    214 

1822  Great  Britain Sidy  Hamet  Benamor  Beggia,   (Case  of)    ...  333 

1823  Great  Britain Wilhelm    Frederick,    The    457 

1824  Great  Britain De  Lama  v.  Haldimand   139 

1825  United  States Antelope,    The    19 

1825     United  States Hall  v.  Young   184 

1825     United  States Herman  v.  Herman   188 

1825  United  States Hutchinson  v.  Coombs   192 

1826  United  States Catlett  v.  Pacific  Insurance  Company  98 

1826     United  States. United  States  v.  Ortega  411 

1828     United  States .Wilson  v.   The   Mary    459 

1830  United  States Pool  v.  Welsh    310 

1831  United  States Magee  v.  The  Moss    255 

1832  United  States Davis  v.  Packard  130 

1832  United  States Sartori  v.  Hamilton    323 

1833  United  States Davis  v,   Packard    133 

1833     United  States Gardner   v.    Bibbins    164 

1833  United  States Scanlan  v.   Wright    326 

1834  United  States Toler  v.   White    373 

1835  Great  Britain Adolph,    The     6 

1835     Great  Britain Barber,    (Trustees  of  Mrs.)    51 

1835  United  States Durand   v.   Halbach    149 

1836  United  States Brown  v.  The  Independence 83 

1836     United  States Levy  v.   Burley    230 

1836     United  States Parsons  v.   Hunter    294 

1836     United  States Stein  v.  Stein 's  Curator  351 

1836  United  States Sturgis   v.    Slacum    354 

1837  United  States Matthews  v.  Offley    282 

1837     United  States Potter  v.  Ocean  Insurance  Company    315 

1837  United  States William   Harris,   The    458 

1838  Great  Britain Eady,   In  re    150 

1838     United  States Gittings  v.  Crawford    165 

1838     United  States Kidderlin  v.   Meyer    216 

1838  United  States Savage   v.   Birckhead    326 

1839  United  States Aspinwell  v.  The  Queen  's  Proctor 20 

1839     United  States Coriolanus,    The     120 

1839  United  States Stein  v.  Bowman   349 

1840  Great  Britain Golubchick,    The    173 

1841  Great  Britain Daly,   In  re,    128 

xxiii 


CHRONOLOGICAL  LIST 

Date                Country                                           Name   of   Case  Page 

1S41  Great  Britain Davy  to  Maltwood   137 

1841  Great  Britain Kent  v.  Burgess    214 

1S41  United  States Wedderburn,   Succession   of    440 

1843  United  States Morris  v.  Cornell  283 

1843  United  States Stiff  v.  Nugent   354 

1843  United  States St.  John  v.  Croel    321 

1844  Great  Britain Leveux   v.    Berkeley    230 

1844  United  States Luscom  v.  Osgood  252 

1845  Great  Britain Darling,    In    re    128 

1845  United  States Graham  v.  Hoskins   179 

1845  United  States Smith  v.   Treat    334 

1846  United  States Norberg  v.  HLllgreu   290 

1847  United  States Koppel   v.    Heinrichs    216 

1847  United  States Eogers  v.  Amado    320 

1848  United  States Aycinena,   In  the  Matter  of    29 

1848  United  States Davis  v,  Leslie    129 

1848  United  States Flynn  v.  Stoughton    161 

1848  Great  Britain Hutchinson,   Ex  parte    191 

1848  United  States Infanta,   The    198 

1848  United  States Lamb  v.   Briard    219 

1848  United  States One  Hundred  and  Ninety-four  Shawls    ....  292 

1849  United  States Atlantic,    The    22 

1849  United  States Bucker   v.    Klorkgeter    83 

1849  United  States Harrison  v.   Vose    185 

1849  United  States Lynch   v.    Crowder    252 

1849  United  States Orr  v.  The  Achsah   293 

1849  United  States Tingle   v.    Tucker    369 

1851  United  States Adolph,    The    6 

1851  United  States Jordan  v.   Williams    201 

1851  United  States Eobson  v.  The  Huntress   320 

1852  Great  Britain Bird,   Ex  parte    72 

1852  United  States Kaine,    In    re    213 

1853  United  States Griffin  v.  Dominguez    182 

1853  United  States Patch  v.   Marshall    294 

1853  United  States Valarino   v.    Thompson    418 

1854  United  States Brunent  v.  Taber   83 

1854  United  States Dillon,  In  re    139 

1854  United  States Haggitt  v.   Iniff    184 

1854  United  States Lanfear  v.  Ritchie    224 

1854  United  States Saunders  v.  The  Victoria   325 

1855  Great  Britain Baltica,    The     51 

1855  Great  Britain Cooper,  In  re  Anne    120 

1855  Great  Britain Dufour,  Succession  of    148 

1855  United  States Ferrie  v.  The  Public  Administrator  160 

1855  United  States Saint  Luke's  Hospital  v.  Barclay  322 

1855  United  States Snow  v.  Wope   334 

1855  United  States United  States  v.  Lunt   410 

1855  United  States Wope   v.    Hemenway    459 

1856  United  States Campbell  v.  Steamer  Uncle  Sam  90 

1857  United  States Graham    v,    Stucken     179 

1857  Great  Britain Sorensen  v.  The  Queen    334 

xxiv 


CHRONOLOGICAL  LIST 

Date                Country                                             Name   of   Case  Page 

1857  Arbitration Vergil,  In  re    423 

1858  United  States Havana,    The     186 

1858  United  States Shorey  v.  Kennell    333 

1859  United  States Seidel  v.  Peschkaw   330 

1860  United  States Mott   v.    Smith    280 

1861  Great  Britain Franz   and  Elize,   The    164 

1861  Great  Britain Herzogin    Marie,    The    188 

1861  United  States Hinde,  Succession  of    190 

1861  United  States Eiley  v.  The  Obeli  Mitchell   319 

1862  United  States Elizabeth,    The     151 

1862  United  States Farmer,  Succession  of    155 

1862  United  States Lilla,    The     235 

1862  United  States Loring  v.    Thorn  dike    247 

1862  Great  Britain Simpson   v.    Fogo    333 

1863  United  States Hathaway  v.  Jones  186 

1863  Great  Britain Octavie,    The    292 

1863  United  States Pioneer,    The    310 

1866  Great  Britain Lewis  v.   Jewhuist    235 

1866  United  States Lorway  v.  Lousada    252 

1867  Great  Britain Blanche  v.  Kangel   (The  Nina)    74 

1867  Great  Britain Nina,  The    285 

1867  United  States Spanish   Consul's   Petition    334 

1868  United  States '.Coppell  v.  Hall   120 

1868  United  States Sagory  v.   Wissman    321 

1868  United  States Townshend  v.   The  Mina    374 

1869  United  States Bixby  v.   Janssen    73 

1869  Great  Britain Dent  v.  Smith    139 

1869  United  States Mahoney  v.  United  States   255 

1869  United  States Otterbourg  's    Case    294 

1869  Great  Britain Sharpe  and  Sharpe  v.  Crispin   333 

1870  United  States Elwin    Kreplin,    The    151 

1870  United  States Farez,   In  re    155 

1870  United  States Hayes  v.  J.  J.  Wickwire    186 

1871  United  States Becherdass    Ambaidass,    The    54 

1871  United  States Gallon  v.  Williams    87 

1871  United  States Chester   v.    Benner    98 

1871  United  States Coffin  v.  Weld    107 

1871  United  States Newman,   Ex   parte    285 

1871  United  States Eobert  Eitson,   The    319 

1872  United  States Elwine  Kreplin,  The    152 

1872  United  States Jenks  v.  Cox    199 

1873  United  States McKay  v.   Garcia    254 

1874  United  States Bernard  v.  Greene   70 

1875  United  States Dainese  v.   Hale    122 

1876  Great  Britain Evangelistris,  The    154 

1876  United  States Fry  v.  Cook   164 

1876  United  States Van  Hoven,  Ex  parte  Henry   423 

1877  Great  Britain Agincourt,    The    6 

1878  Great  Britain Niboyet  v,   Niboyet    285 

1879  United  States Lilian  M.  Vigus,  The    235 

1880  United  States Amalia,  The   9 

XXV 


CHRONOLOGICAL  LIST 


Date 
1880 
1880 
1880 
1881 
1882 
1882 
1882 
1882 
1883 
1883 
1883 
1883 
1884 
1884 
1884 
1884 
1884 
1885 
1885 
1885 
1885 
1885 
1886 
1886 
1886 
1887 
1887 
1887 
1887 
1887 
1887 
1888 
1888 
1889 
1889 
1889 
1890 
1890 
1890 
1890 
1890 
1891 
1891 
1891 
1891 
1891 
1891 
1892 
1892 
1892 
1892 


Country  Name   of   Case 

United  States Dumas,  Interdiction  of  Joseph    149 

United  States Heynsolm  v.   Merriam    189 

United  States Oscanyan  v.   Arms  Co 293 

United  States Gould    v.    Staples    178 


ted  States Miller  v.  Van  Loben  Sells 


United  States Alice,    The    

United  States Bischoffscheim  v,   Baltzer 

United  States Paul  Kevere,  The    

United  States Semmens  v.  Walters   .  . .  .  , 

United  States Brown  v.  Landon    

United  States Castro  v.  De  Uriate   .... 

Great  Britain Leon   XIII,    The    

United  States Eoth,   In   re    

United  States Belgenland,    The    

United  States Bors  v.  Preston   

Great  Britain Cooke  v.  Wilby   

Great  Britain Fawcus,  In  the  Goods  of 

United  States Hitz,   Ex  parte    , 

United  States Adams  v.  State   , 

United  States Aubrey,  In  re    , 

Great  Britain Magee,  In  re    

Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 
Un 


7 

73 

304 

332 

82 

91 

229 

320 

55 

74 

120 

158 

190 

6 

26 

255 

283 


ted  States W.  L.  White,   The    447 

ted  States Salomoni,    The     323 

ted  States United  States  v.  Mitchell   410 

ted  States Wildenhus's   Case    447 

ted  States Benson   v,   McMahon    70 

ted  States Byers  v.  United  States 84 

ted  States Froment  v.  Duclos    164 

ted  States Herres,    In    re    188 

ted  States Mathews  v.  United  States 282 

ted  States United  States  v.  Badeau    376 

ted  States Leavitt  v.  United  States   224 

ted  States Mosby  v.  United  States  284 

ted  States Conserva,    The     119 

ted  States Goldaborough  v.  United  States    173 

ted  States United  States  v.  Mosby    410 

ted  States Baiz,    In   re    33 

ted  States Burchard,    The    84 

ted  States Hollander   v.    Baiz    190 

ted  States Topsy,  The   374 

ted  States Waitshoair   v.    The   Craigend    436 

ted  States Azogue  v.  United  States   30 

ted  States New   City,   The    284 

ted  States Sirius,    The     334 

ted  States Stahel  v.  United  States  335 

ted  States United  States  v.  Owen    415 

ted  Staffs United  States  v.  Trumbull    418 

ted  States Marie,   The    2.59 

ted  States Moore  v.  Miller   283 

ted  States Schunior  v.  Russell   328 

ted  States Welhaven,    The    446 


XXVI 


CHRONOLOGICAL  LIST 

Date                Country                                             Name   of   Case  Page 

1893     United  States Adutt,  In  re    6 

1893  United  States United  States   v.    Bee    379 

1894  United  States De  Give  v.  Grand  Kapids  Furniture  Co.   .  . .  139 

1894  United  States Hill  v.  The  Sachem   189 

1895  United  States Matheson  v.  Campbell   282 

1895     United  States Ornelas  v.  Euiz   292 

1895     United  States Eabasse,  Succession  of  316 

1895     United  States Tartaglio,  In  re    360 

1895  United  States Walter  D.  Wallet,  The 439 

1896  United  States Marston  v.  United  States   281 

1896     United  States Pooley  v.  Lueo    310 

1896  United  States Wilcox  v.  Luco    447 

1897  United  States Graves  v.  The  W.  F.  Babcock 181 

1897     United  States lasigi,   In   re 192 

1897     United  States lasigi  v.  Van  de  Carr   ." 197 

1897     United  States Lady   Furness,    The    219 

1897     United  States McCandless    v.    Yorkshire     252 

1897     United  States Marine  Wharf  v.  Parsons  259 

1897     United  States Telefsen   v.   Fee    362 

1897  United  States Wilcox  v.  Luco    447 

1898  United  States United  States  v.  Eaton   379 

1898  United  States Hindsgaul  v.  The  Lyman  D.  Foster  190 

1899  United  States .Baiz  v.  Malo    51 

1899     United  States Eedmond  v.  Smith    318 

1899  United  States Sugenheimer,  In  re  359 

1900  United  States Benito   Estenger,    The    70 

1900     United  States Fattosini,  Matter  of  155 

1900     United  States General  McPherson,  The   165 

1900     United  States Eice  v.  Ames   318 

1900     United  States Scott  v.  Hobe    329 

1900  United  States United  States  v.  Motherwell    410 

1901  United  States Eudora,    The    152 

1901     United  States Grin,  In  re  183 

1901     United  States Kestor,   The    216 

1901     United  States Logiorato  's  Estate,   In  re    244 

1901     United  States Motherwell  v.  United  States 284 

1901  United  States United  States  v.  Kelly    407 

1902  United  States Browne  v.  Palmer  83 

1902     United  States Falls  of  Keltie,  The    154 

1902     United  States Grin  v.  Shine   183 

1902     United  States Lobraseiano 's  Estate,  In  re   235 

1902     United  States Steward  v.  Linton    351 

1902     United  States Troop,    The    376 

1902  United  States Wilbor  v.  United  States    447 

1903  United  States Kenney   v.    Blake    214 

1903     United  States Kessler  v.  Best    214 

1903  United  States Patterson  v.  Bark  Eudora    296 

1904  United  States Alnwick,    The     9 

1904     United  States Dallemague    v.    Moisan    123 

1904     United  States Davenport,   In   re    129 

1904     United  States Long  v,  Powell   247 

xxvii 


CHRONOLOGICAL  LIST 

Date                 Country                                             Name   of   Case  Page 

1905  ITnited  States Mabin  v.  United  States  255 

1905  United  States Neck,  The   284 

1906  United  States Commonwealth  v.  Di  Silvestro   112 

1906  United  States Alexandra,   The    7 

1906  United  States Peterson's  Will,  In  re   308 

1906  United  States United  States  v.  Lucinario   410 

1906  United  States Wyman,    In   re    460 

1907  United  States Von  Thodorovich  v.  Franz  Josef  Ben.  Ass'n  432 


XX  vm 


JUDGES  WITH  LIST  OF  CASES  DECIDED 


Judges  Cases 

Abbott    De  Lema  v.  Haldimand  139 

Adams    Alnwick,   The    9 

Archbold    Van  Thodorovich  v.  Franzjoset  Ben.  Ass'n.  432 

Bee    Gernon    v.    Cochran    165 

Thompson  v.  The  Nanny 369 

Bellinger    United  States  v.  Kelly  407 

Benedict     Conserva,    The    119 

Bermudez    Dmnas,  Interdiction  of  Joseph 149 

Betts     Atlantic,  The   22 

Backer  v.  Klorkgeter    83 

Davis    V.    Leslie    129 

Elizabeth,    The     151 

Gardner   v.    Bibbins    164 

Graham  v.  Hoskins   179 

Lamb   v.    Briard    219 

Lynch  v.  Crowder   252 

One  Hundred  and  Ninety-four  Shawls  ....  292 

Eiley  v.  Obeli  Mitchell,  The 319 

Saint  Luke 's  Hospital  v.  Barclay 322 

Tingle  v.  Tucker   369 

Billings    Fry  v.  Cook   164 

Caroline,  see  Fry  v.  Cook 

Blatchf ord    Bischoffscheim  v.  Baltzer    73 

Bixby  V.  Janssen  73 

Farez,  In  re  Francois   155 

McKay  v.   Garcia    254 

Sagory   v.   Wissraan    321 

Spanish    Consul 's   Petition    334 

United  States  v.  Mosby    410 

Booth    Mahin  v.  United  States  255 

Bradford    Kestor,   The    216 

Bradley    Belgenland,    The    55 

.Dainese  v.  Hale  122 

Brawley    Alexandra,   The    7 

Brett    Leon  XIII,  The    229 

Brewer    Herres,   In   re    188 

Patterson  v.   Bark  Eudora,   The    296 

Brown    Castro  v.  De  Uriarte  91 

Froment  v.   Duclos    164 

Graves  v.  W.  F.  Babcock   181 

Grin  v.   Shine    183 

Hill  V.  The  Sachem   189 

Hollander  v.  Baiz   190 

xxix 


JUDGES  TVITH  LIST  OF  CASES  DECIDED 

Judges                                                           Cases  Page 

Brown — (Contiriued)   lasigi,   In   re    192 

Infanta,    The    198 

Leavitt  v.  United  States 224 

Paul  Revere,  The    304 

Rice  V.  Ames    318 

Roth,   In   re    320 

Sugenheimcr,    In    re    359 

W.  L.  White,  The   44? 

Bullard   Stein  v.  Stein  'a  Curator   351 

Stiff  V.   Nugent    354 

Cadwaladcr    Hayes  v.  J.  J.  Wickwire   186 

Townshend  v.  The  Mina   374 

Catron    Kaine,  In  re  213 

Cave    Magee,  In  re    255 

Chitty    Cooke  v.  Wilby    120 

Choate    Ileynsohn   v.   Merriman    189 

Lilian   M.   Vigus,   The    235 

Church    Davenport,  In  re   129 

Clifford     Newman,  Ex  parte   285 

Cobb   McCandless  v.  Yorkshire   252 

Cockburn    Lewis  v.   Jewhurst    235 

Coxe    United  States  v.  Mitchell   410 

Cranworth,   Lord    Bird,  Ex  parte   72 

Curtis    Adolph,  The    6 

Jordan   v.   Williams    201 

Patch  V.  Marshall   294 

Snow    v.    Wope    334 

Dallas   Motherwell  v.  United  States   284 

Daniels    Brown  v.   Landon    82 

Davis    Azogue  v.  United  States   30 

Goldsborough  v.  United  States   173 

Stahel  v.  United  States  335 

Deady   Bernard  v.  Greene  70 

Marie,  The    259 

Denman,   Lord    Leveux   v.    Berkeley    230 

Dillon    Van  Hoven,  Ex  parte  Henry  423 

Duer   Griffin  v.   Dominguez    182 

Duffie    Browne   v.   Palmer    83 

Edmonds    Flynn   v.   Stoughton    161 

Ellenborough,  Lord   Marshall  v.  Critico    281 

Viveash  v.  Becker   423 

Field    (California)    Mott  v.  Smith    284 

Field     Mahoney  v.  United  States    255 

Oscanyan  v.  Arms  Company 293 

Fish     Long  v.  Powell    247 

Ford    Sartori  v.  Hamilton    323 

Fox   Amalia,    The     9 

Gould    v.    Staples    178 

Fuller   Baiz,  In  re   33 

Benito    Estenger    70 

lasigi  v.  Van  de  Carr   197 

XXX 


JUDGES  WITH  LIST  OF  CASES  DECIDED 

Judges  Cases 

Fuller — (Continued)    Ornelas  v.   Ruiz    292 

Garland    Farmer,  Succession  of    155 

Wedderburn,  Succession  of   440 

Gaines    Schunior  v.  Russell    328 

Gilbert    United  States  v.  Bee   379 

Gildersleeve    Baiz  v.  Malo    51 

Grier   ....  Robson  v.  The  Huntress  320 

Grimko Goddard  v.   Luby    173 

Haines    Seidel  v.  Peschkaw   330 

Hanford   Falls  of  Keltie,  The   154 

General  McPherson,  The    165 

Hindsgaul  v.  The  Lyman  D.  Foster 190 

Neck,    The     284 

New  City,  The   284 

Troop,   The    376 

Waitshoair  v.  The  Craigend 436 

Hannen    Fawcus,  In  re    158 

Hardwicke    Colebrook  v.  Jones   112 

Harlan     Bors   v.    Preston    74 

Mathews  v.  United  States 282 

Harris     Koppel  v.  Heinrichs   216 

Harrison     Wilcox  v.  Luco    447 

Hoffman     Dillon,   In   re    139 

Hopkins    Welsh   v.    Hill    446 

Hopkinson    Brown  v.  The  Independence   83 

Coriolanus,    The     120 

Magee  v.  The  Moss  255 

Pool  V.  Welsh    310 

Wilson  V.  The  Mary 459 

Howry    Wilbor  v.  United  States   447 

Huger   State  v.  De  La  Foret 337 

Jay    Glass  v.  The  Sloop  Betsey 172 

Jenkins     Adutt,  In  re   6 

Jenner,  Sir  Herbert    Aspinwall  v.  Queen 's  Proctor 20 

Johnson    Bello  Corrunes,   The    68 

Invincible,    The    199 

Jones    Marine  Wharf  v.  Parsons   259 

Norberg   v.    Hillgreu    290 

Kane     Orr  v.  The  Achsah    293 

Kenyon,  Lord   Roberts  v.  Eddington   319 

Lacombe    Kessler  v.  Best    214 

Lathrop    Telefsen   v.    Fee    362 

Wyman,  In  re    460 

Locke    Alice,    The    7 

Lord  Justices   Haggitt   v.   Iniff    184 

Lowell     Becherdass   Ambaidass,   The    54 

Gallon   V.   Williams 87 

Chester  v.   Benner   98 

Coffin  V.   Weld    107 

Lorway  v.  Lousada 252 

Robert  Ritson,  The   319 

xxxi 


JUDGES  WITH  LIST  OF  CASES  DECIDED 

Judges  Cases 

Lushington    Baltica,  The    51 

Franz  and  Elize,  The  164 

Golubehiek,    The    173 

Herzogin  Marie,  The    188 

Octavie,    The    292 

McAllister    Campbell  v.  Steamer  Uncle  Sam  90 

McCaleb    Kogers  v.  Amado   320 

McFarland     Wilcox  v.  Luco    447 

McKee    Miller  v.  Van  Loben  Sells 283 

McLean    Stein  v.   Bowman    349 

McPherson   Eudora,  The   152 

United  States  v.  Motherwell 410 

Mansfield,   Lord,    Healthfield  v.  Chilton   187 

Triquet  v.  Bath   375 

Mansfield,  Sir  James    Clarke  v.  Cretico   105 

AValdron  v.   Coombe    436 

Marshall    Antelope,    The    19 

Church  V.  Hubbart   99 

Cohens  v.  Virginia    108 

Divina  Pastora,   The    148 

Martin    Ferrers  v.  Bosel  159 

Mathews     Caygas  v.  Larionda's  Syndic   98 

Merrick    Loring   v.    Thorndike    247 

Miller   Benson   v.   McMahon    70 

Rabasse,  Succession  of  316 

Morrow    Grin,   In   re    183 

Kenny  v.  Blake   214 

Neil    Eedmond  v.  Smith   318 

Nelson    Graham  v.  Stucken   179 

Pioneer,    The    310 

Nichol,  Sir  John   Adolph,    The     6 

Noble    Peterson 's  Will,  In  re   308 

Ogden    Lanf ear  v.  Eitchie    224 

Orlady    Commonwealth  v.  Di  Silvesro   112 

Orton    Semmens  v.   Walters    332 

Pardee    Aubrey,  In  re    26 

Parker    Hall  v.  Young   184 

Patteson,    Sir    John    Sorenson  v.  The  Queen   334 

Peck    Otterbourg  's    Case    294 

Peckham     Dallemagne  v.  Moisan    123 

Pettit    Durand  v.  Halbach   149 

PhiUimore,  Sir  Robert    Agincourt,    The    6 

Evangelistria,    The    154 

Niboyet  v.   Niboyet    285 

Richardson    Byers  v.  United  States   84 

Romilly,   Lord    Nina,    The    285 

Ross    Sirius,   The    334 

United  States  v.  Trumbull 418 

Ruggles    Valarhio  v.  Thompson   418 

Scott,    Sir    William;    see   also 

Lord  Stowell Betty   Cathcart,    The    72 

xxxii 


JUDGES  WITH  LIST  OF  CASES  DECIDED 

Judges                                                        Cases  Page 

Scott,  Sir  William— (Conf.)    .  .Charlotte,  The    98 

Courtney,   The    121 

Dree  Gebroeders,  The,  v.  Vandyk 148 

Falcon,   The    154 

Flad   Oyen,   The    160 

Hope,    The    190 

Indian  Chief,  The   197 

Josephine,    The    213 

Madonna  d'   Idra    255 

President,    The     316 

Two  Friends,  The   376 

Vrow  Anna  Catharina,  The 436 

Shaw    Savage  v.   Birckhead    326 

Scanlon  v.  Wright   326 

Shepley     Jenks  v.   Cox    199 

Shippen     Caldwell  v.   Barclay    86 

Silknian     » . .  ..Fattosini,   Matter   of    155 

Lobrasciano  's  Estate,  In  re   235 

Tartaglio,   In  re    360 

Simmonton     Topsy,    The    374 

Slidell Duf our.  Succession  of    148 

Speer    Salomini,    The    323 

Sprague    Brunent  v.  Taber    83 

Hathaway  v.  Jones  186 

Havana,   The    186 

Lilla,  The    235 

Luscom  V.  Osgood  252 

Morris   v.   Cornell    283 

Shorey  v.  Eennell    333 

United  States  v.  Lunt   410 

Wope  V.  Hemenway   459 

Story    Anne,    The    11 

Levy  V.  Burley 230 

London   Packet,    The    247 

Matthews  v.  Offley    282 

Parsons  v.   Hunter    294 

Potter  V.  Ocean  Insurance  Company   315 

Eowe  v.  Brig   321 

Stowell,  Lord ;  see  also  Sir  Wil- 
liam Scott Kammerhevie  v.  Rosenkrants    214 

Wilhelm   Frederick,   The    457 

Surrogate     Ferrie  v.  Public  Administrator   160 

Swayne    Coppell  v.  HaU   120 

Talbot,  Lord Barbuit  's    Case    52 

Taney   Gittings  v.   Crawford   165 

Tenney  Lady  Furness,  The   219 

Thomas     Logiorato  's  Estate,  In  re   244 

Thompson    Catlett  v.  Pacific  Insurance  Company 98 

Davis  v.   Packard    130 

Davis  V.  Packard    133 

Tilghman   Commonwealth  v.  Kosloff   112 

xxxiii 


JUDGES  WITH  LIST  OF  CASES  DECIDED 

Judges                                                          Cases  Page 

Tilghman — Continued)    Mannhardt  v.  Soderstrom    256 

1  indall    Daly,    In   re    128 

Darling,  In  re    128 

Davy  to   Maltwood    137 

Eady,   In   re    150 

Toulniin    Burchard,    The     84 

Walter  D.  Wallet,  The   439 

Welhaven,    The     446 

Townsend     Mathesou  v.  Campbell    282 

Van    Epps    De  Give  v.  Grand  Rapids  Furniture  Co.   .  .  .  139 

Vico-Chancellor    Albretcht  v.  Sussman   7 

Kent  V.   Burgess    214 

Waite   Wildenhus  's   Case    447 

Wallace    United  States  v.  Badeau   376 

Ware Bee,  The    54 

Hutchinson  v.  Coombs    192 

Smith   V.   Treat    334 

Toler  V.  White  373 

William  Harris,  The   458 

Washington   Herman   v.    Herman    188 

United  States  v.  Ortega  411 

Waties Goddard  v.  Luby  173 

Weldon    Mosby  v.   United  States    284 

Wellborn    Pooley   v.   Luco    310 

Wheeler    United  States  v.  Owen  415 

White    United  States  v.  Eaton    379 

Wilde    Sharpe  and  Sharpe  v.  Crispin 333 

Sturgis  V.  Slacum    354 

Willard     United  States  v.  Lucinario   410 

Wilson   (Texas)    Adams  v.  State   6 

Wilson    (U.  S.  Sup.   Ct.)    United  States  v.  Ravara   415 

Winslow    Scott  v.  Robe    329 

Wood    Simpson   v.    Fogo    333 

Woodbury    Harrison  v.  Vose   185 

Woodruflf    Elwine   Kreplin,    The    152 

Woods    Marston  v.  United  States  281 


XXXIV 


TABLE  OF  THE  OPINIONS  OF  THE  ATTORNEYS  GENERAL 


Attorneys  General 

Reports 

Bates    

...Vol. 

XI, 

p- 

Berrien 

.  . .  Vol. 

n, 

p- 

Black    

.  . .  Vol. 

IX, 

p- 

Vol. 

IX, 

p- 

Vol. 

IX, 

p- 

Vol. 

IX, 

p- 

Vol. 

IX, 

p- 

Vol. 

IX, 

p- 

Vol. 

IX, 

p- 

Vol. 

IX, 

p- 

Bradford    

...Vol. 

I, 

p- 

Vol. 

I, 

p- 

Butler    

.  . .  .Vol. 

n, 

p- 

Gushing    

...Vol. 

VI, 

p- 

Vol. 

VII, 

p- 

Vol. 

VII, 

p- 

Vol. 

VII, 

p- 

Vol. 

VII, 

p- 

Vol. 

VII, 

p- 

Vol. 

VII, 

p- 

Vol. 

VII, 

p- 

Vol. 

VII, 

p- 

Vol. 

VII, 

p- 

Vol. 

VIII, 

p- 

Vol. 

VIII, 

p- 

Vol. 

VIII, 

p- 

Vol. 

VIII, 

p- 

Vol. 

VIII, 

p- 

Vol. 

VIII, 

p- 

Devens    

. .  . .  Vol. 

XVI, 

p- 

Evarts    

....Vol. 

XII, 

p. 

Garland    

....Vol. 

XIX, 

p- 

Vol. 

XIX, 

p. 

Vol. 

XIX, 

p- 

Vol. 

XIX, 

p- 

Gilpin    

....Vol. 

III, 

p- 

Griggs    

....Vol. 

XXII, 

p- 

Vol. 

XXII, 

p- 

Vol. 

XXIII, 

p- 

Vol. 

XXIII, 

p- 

Vol. 

XXIII, 

p- 

Grundy   

. . .  .  Vol. 

III, 

p- 

Harmon    

....Vol. 

XXI, 

p- 

Page 

72  596 

378  473 

96  585 

383  587 

384  588 

426  590 

441  591 

496  593 

500  594 

507  594 

41  463 

43  464 

725  480 

617  489 

18  497 

186  509 

242  511 

342  541 

349  547 

367  548 

395  554 

542  555 

772  556 

73  557 

98  568 

169  571 

380  576 

469  582 

476  583 

268  608 

463  602 

16  609 

22  610 

196  613 

225  615 

532  482 

72  623 

212  627 

93  630 

112  640 

400  640 

405  481 

201  621 


XXXV 


TABLE  OF  THE  OPINIONS  OF  THE  ATTORNEYS  GENERAL 

Attorneys  General  Eeports  Page 

Hoyt  Vol.  XXIV,  p.  116  646 

Johnson    Vol.  V,  p.  161  487 

Knox     Vol.  XXIV,  p.     69  645 

Vol.  XXIV,  p.  672  647 

Vol.  XXV,  p.     77  649 

Lee    Vol.  I,  p.     77  465 

Vol.  I,  p.     81  466 

Legaro    Vol.  Ill,  p.  683  483 

Mason     Vol.  IV,  p.  390  486 

Miller    Vol.  XX,  p.     92  620 

Vol.  XX,  p.  455  621 

Nelson    Vol.  IV,  p.  185  484 

Richards     Vol.  XXII,  p.     32  623 

Speed    Vol.  XI,  p.  508  597 

Stanbery    Vol.  XII,  p.       1  598 

Vol.  XII,  p.     97  599 

Vol.  XII,  p.  124  601 

Taft,  Alphonzo Vol.  XV,  p.  178  604 

Taft,  Wm.  H Vol.  XX,  p.     26  618 

Taney   Vol.  II,  p.  521  477 

Williams     Vol.  XIV,  p.  520  602 

Wirt    Vol.  I,  p.  378  466 

Vol.  I,  p.  406  467 


XXXVl 


REGULATIONS    RELATING  TO    IMMUNITIES   OF  CONSULS  AS 

ADOPTED  BY  THE  INSTITUTE  OF  INTERNATIONAL 

LAW,  IN  ITS  SESSION  OF  SEPT.  26,  1896.* 


PRELIMINARY  CHAPTER 

Article  1. — The  title  of  consul  belongs  only  to  those  agents  of  the 
foreign  service,  who  belong  to  the  state  they  represent,  and  who  exer- 
cise no  functions  other  than  those  of  consul,    (consules  missi) 

Hereafter,  the  following  classes  shall  be  designated  as  consular 
agents : 

(a)  Consuls,  who  are  nationals,  that  is  citizens  or  subjects  of  the 
sending  state,  but  who  exercise  other  functions  or  have  some  other 
calling ; 

(b)  Consuls,  who  by  nationality,  belong  either  to  the  state  in 
which  they  are  commissioned,  or  to  some  state  other  than  the  sending 
state,  without  distinguishing  between  those  who  exercise  and  those 
who  do  not  exercise,  other  functions  or  callings. 

Art.  2. — Consuls  and  consular  agents  are  subject  to  the  laws  and 
territorial  jurisdiction,  save  for  the  exceptions  specified  under  chapters 
I  and  II,  below. 

Art.  3. — To  entitle  consuls  and  consular  agents  to  be  admitted  and 
recognized  as  such,  they  must  present  their  patent  or  commission; 
on  the  production  of  which,  they  will  receive  their  exequatur. 

Upon  the  presentation  of  the  exequatur,  the  authority  presiding 
over  the  district,  in  which  the  said  agents  are  to  be  located,  will  give 
the  necessary  orders  to  the  other  local  authorities,  in  order  that  they 
may  be  protected  in  the  exercise  of  their  functions,  and  that  the  im- 
munities, exemptions,  and  privileges,  conferred  by  these  regulations, 
may  be  guaranteed  to  them. 

In  the  event  that  the  government  of  a  country  should  deem  it 
advisable  to  withdraw  the  exequatur  from  a  consul,  it  should  pre- 
viously inform  the  government  to  which  the  consul  belongs. 


^[Translated  from  the  original  in  French. — Ed.] 

1 


CONSULAR  IMMUNITIES 


CHAPTER  FIRST 

Consuls 

Art.  4. — Consuls  enjoy  personal  immunity,  under  the  conditions 
and  \nthin  the  limits  specified  in  articles  5,  6,  7,  and  8,  below. 

Art.  5. — They  are  not  amenable  to  the  local  courts  for  acts  which 
they  perform  in  their  official  capacity  and  within  the  limits  of  their 
powers.  Exceptions  to  this  rule  must  be  agreed  upon  in  advance  and 
defined  by  treaty. 

If  an  individual  considers  himself  injured  by  the  act  of  a  consul, 
done  in  the  discharge  of  his  duties,  he  shall  address  his  complaint  to 
the  government  of  the  country,  which  will  take  it  up,  if  there  is  reason 
to  do  so,  through  diplomatic  channels. 

Art.  6. — Except  in  the  case  specified  in  article  5,  above,  consuls 
are  amenable  to  the  courts  of  the  country,  in  which  they  exercise  their 
functions  both  as  regards  civil  and  criminal  questions. 

Nevertheless,  every  proceeding  directed  against  a  consul  is  sus- 
pended until  his  government  (sending  state),  duly  notified  through 
diplomatic  channels,  shall  have  been  put  in  a  position  to  confer  with 
the  government  of  the  country  (receiving  state)  so  as  to  reach  an  ade- 
quate settlement  of  the  incident. 

Such  previous  notice  is  not  necessary: 

( 1 )  In  case  of  outrageous  offences  or  crimes ; 

(2)  In  property  suits  (suits  in  rem),  in  which  are  included  suits 
for  po.ssession,  whether  relating  to  personal  property  or  to  real  estate 
situated  in  the  country  itself  (receiving  state)  ; 

(3)  When  the  consul  himself  has  begun  the  litigation  or  accepted 
suit  in  the  courts  of  the  receiving  state. 

Art.  7. — In  no  case  may  consuls  be  arrested  or  detained,  except 
for  grave  infractions  of  the  law. 

Art.  8. — They  are  not  compelled  to  appear  as  witnesses  before 
the  local  tribunals.  Their  testimony  must  be  taken  at  their  residence 
by  a  magi.strate  appointed  ad  hoc. 

In  exceptional  cases,  where  the  appearance  of  the  consul  in 
person  before  the  magistrate  exercising  civil  or  criminal  jurisdiction 
is  considered  indispensable,  and  he  refuses  to  accede  to  the  invitation 
addres.sed  to  him,  to  appear  before  the  competent  judge,  the  govern- 
ment of  the  receiving  state  should  have  recourse  to  diplomacy. 

2 


CONSULAR  IMMUNITIES 

Art.  9. — The  official  residence  of  a  consul  and  the  premises  oc- 
cupied by  his  office  and  papers  are  inviolable. 

No  administrative  or  judicial  officer  may  invade  them,  under  any 
pretext  whatsoever.  If  an  individual,  pursued  by  the  officers  of  the 
law  takes  refuge  in  the  consulate,  the  consul  is  bound  to  deliver  him 
up  on  the  simple  demand  of  the  authorities. 

Art.  10. — In  order  specially  to  insure  the  inviolability  of  the  con- 
sular archives,  the  foreign  agent  (consul),  should  make  use  of  the 
diplomatic  mission  to  transmit  to  the  authorities  of  the  county  (re- 
ceiving state)  a  paper  describing  the  premises  composing  the  office 
of  the  consulate.  This  should  be  done  at  the  time  the  consul  enters 
upon  the  discharge  of  his  functions  and  whenever  the  files  (chan- 
cellerie)  are  transferred  from  one  building  to  another  or  any  im- 
portant change  is  made  in  the  arrangement  of  the  office  (chancellerie). 

The  above-mentioned  statement  describing  the  arrangements  of 
the  consulate  shall  be  verified  each  time  by  an  officer  of  the  receiving 
state. 

Art.  11. — Consuls  should  refrain  from  placing  among  their 
archives,  and  in  the  rooms  of  their  office,  documents  and  objects  not 
connected  with  their  service. 

The  offices  of  the  consulate,  if  distinct  from  the  rooms  serving  as 
the  abode  of  the  consul,  may  be  installed  in  the  same  building. 

Art.  12. — If  the  consul  refuses  to  deliver  up  documents  in  his 
possession  when  required  to  do  so  by  the  judicial  authorities  of  the 
country,  the  administrative  authority  shall  have  recourse  to  the  gov- 
ernment of  the  country,  who  will  take  the  matter  up,  if  there  be  oc- 
casion, through  diplomatic  channels. 

Art.  13. — Consuls  are  exempt  from  the  payment  of:  (1)  direct 
personal  taxes,  and  sumptuary  taxes;  (2)  general  taxes  upon  their 
fortune  whether  upon  the  capital  or  income;  (3)  imposts  of  war. 

Art.  14. — Consuls  are  permitted  to  place  above  the  outside  en- 
trance of  the  consulate  the  arms  of  their  country,  with  the  inscrip- 
tion :  *  *  Consulate  of " 

They  may  on  public  occasions  display  the  flag  of  their  country 
upon  the  building  in  which  the  consulate  is  located,  unless  they  reside 
in  the  city  where  their  government  is  represented  by  a  diplomatic 
mission. 

They  are  likewise  authorized  to  raise  the  flag  of  their  country 
upon  the  boats  they  use  in  the  exercise  of  their  functions. 

Art.  15. — Consuls  are  permitted  to  correspond  with  their  govern- 
ment and  with  the  political  mission  of  their  country  by  telegraphic 
despatches  in  cipher  or  by  means  of  messengers  provided  with  a 
passport  ad  hoc. 

3 


CONSULAR  IMMUNITIES 

It  is  likewise  permissible  for  them  to  entrust  their  correspondence 
to  the  captains  of  vessels  of  their  nationality  at  anchor  in  the  harbor  of 
their  place  of  residence. 

In  case  of  an  epidemic,  the  disinfection  of  letters  intended  for 
consuls  takes  place  in  the  presence  of  a  consular  delegate. 

Art.  16. — In  event  of  the  decease  or  the  unlooked  for  disability 
of  the  consul,  the  consular  officer  of  highest  rank  after  him  shall  be 
considered  to  have  the  right  to  carry  on  the  consulate.  He  is  obliged, 
however,  in  due  course  to  communicate  to  the  local  authority,  the  of- 
ficial act,  which  confirms  him  in  his  provisional  incumbency. 

To  this  intent,  it  is  the  duty  of  the  consul  to  present  to  the 
local  authority  the  officer  designated  contingently  to  replace  him 
ad  interim. 

This  officer  shall,  during  his  incumbency,  enjoy  the  immunities 
and  privileges  accorded  to  consuls  by  these  regulations. 

Art.  17. — There  is  no  distinction,  as  regards  immunities,  between 
consuls-general,  consuls,  and  vice-consuls. 

It  is  to  be  understood  that  agents  of  this  last  category,  in  so  far 
as  they  are  in  charge  of  vice-consulates,  must  satisfy  the  conditions 
as  to  nationality,  and  the  other  conditions  indicated  (required)  in 
the  first  paragraph  of  article  first  of  these  regulations. 

In  official  ceremonies  to  which  they  are  invited,  consuls-general, 
conisuls,  and  vice-consuls  take  precedence  according  to  their  rank,  and 
in  each  rank,  according  to  the  date  of  their  entrance  upon  the  dis- 
charge of  their  functions. 


CHAPTER  II 

Consular  Agents 


Art.  18. — "When  civil  or  criminal  suits  are  instituted  against  con- 
sular agents,  the  local  courts  shall  be  competent  to  take  cognizance 
of  them  directly,  except  in  case  it  shall  be  established  that  the  said 
agents  have  acted  in  their  official  capacity. 

Art.  19. — Consular  agents  are  exempt  from  taxes  affecting  spe- 
cially the  building  or  part  of  the  building  assigned  to  their  consular 
office. 

With  this  exception,  they  are  subject  to  other  imposts,  whether 
national  or  local. 

Art.  20. — Articles  10,  11,  paragraph  1st,  12  and  14  apply  to 
consular  agents,  with  this  difference  as  regards  article  14,  that  the 

4 


CONSULAR  IMMUNITIES 

coat  of  arms,  placed  over  the  street  entrance  to  their  office,  shall  bear 
the  inscription :  * '  Consular  Agency  of " 

The  office  of  consular  agents,  including  the  room  in  which  the  con- 
sular archives  are  kept,  must  always  be  separate  from  their  business 
offices. 

Art.  21. — Consular  agents  may  correspond  directly,  upon  official 
business,  with  the  administrative  and  judiciary  authorities  of  their 
respective  districts. 


/ 

Resolution  Adopted  hy  the  Institute  in  the  Same  Session 

The  Institute  having  adopted  the  Regulations  regarding  im- 
munities of  consuls,  expresses  the  wish  that  governments,  whose 
functionaries  are  likely  to  be  in  a  position  to  be  benefited  by  them, 
will  exercise  the  greatest  care  in  the  choice  of  such  function- 
aries, that  they  may  be  worthy  in  all  respects  of  the  immunities  above 
specified. 


CONSULAR  CASES 
ADAMS  V.  STATE,  (1885,  U.  S.) 

19  Tex.  App.  250. 

Willson,  Texas  Court  of  Appeals. 

[Consul  qualified  to  take  depositions  to  be  used  in  criminal  cases, 
by  reason  of  the  application  of  articles  of  the  R.  S.  art.  (2226)  and 
articles  762-764  of  the  code  of  criminal  procedure. — Ed.] 

ADOIPH.  THE.  (1835,  Great  Britain) 

3   Hap.  249. 

Sir  John  Nicholl,  High  Court  of  Admiralty. 

(Extract)  In  that  case  (Kammerhavie,  1  Hag.  A.  R.  62)  there 
was  the  certificate  of  the  consul,  and  the  master  gave  his  consent :  here 
there  is  no  one  to  consent.    I  cannot  make  any  order. 

ADOIPH,  THE,  (1851,  U.  S.— France) 

1  Curt.  87;  Fed.  Cases  86. 
Curtis,  Circuit  Court. 

(Extract)  We  deem  it  sufficient  for  this  particular  purpose, 
that  ]\I.  Gouraud  is  the  vice-consul  of  France ;  and  that  French  citizens 
are  interested  in  these  proceeds.  It  is  true,  he  had  not  received  his 
exequatur  when  he  filed  his  petition ;  and  if  this  were  a  suit  instituted 
by  him,  and  depending  on  his  official  character  when  brought,  it  must 
fail.  But  we  do  not  consider  the  proceeding  at  all  analogous  to  a  suit, 
or  even  to  a  petition  for  the  execution  of  a  decree.  It  is  rather  in 
the  nature  of  a  suggestion,  made  in  writing  to  the  court,  that  one  of 
its  officers  has  not  discharged  his  official  duty ; ,  . . 

ADUTT,  IN  RE,  (1893,  U.  S.— Austria-Hungary) 

rj-j  Fed.  lU'p.  376. 

Jenkins,  Circuit  Court. 

[Extradition  proceedings  may  be  commenced  by  consuls. 
It  is  not  necessary  that  the  complainant  should  swear  positively  in 
the  jurat  that  he  is  consul. 

Criticises  rights  allowed  consul  in  extradition  proceedings. — Ed.] 

AGINCOURT,  THE,  (1877,  Great  Britain) 

2  P.  D.  239;  47  L.  J.  Adm.  37. 

Sir  Robert  Phillimorc,  Court  of  Appeal. 

[Court  directed  that  Argentine  consul  be  notified  of  action  against 
Argentine  ves.sel. 

On  his  refu.sing  to  intervene  action  was  dismissed. — Ed.] 

6f 


CONSULAR  CASES 
ALBRETCHT  v.  SUSSMAN,  (1813,  Great  Britain) 

2  Ves.  &  Bea.  327 ;  35  Eng.  Rep.  342. 

Vice-Chancellor,  Chancery. 

(Extract)  I  am  of  opinion,  fortified  by  having  recourse  to 
those  best  qualified  to  inform  me,  that,  if  a  consul,  or  a  person  having 
even  higher  privileges,  residing  in  an  enemy's  country,  not  content 
with  acting  in  that  character^  embarks  in  mercantile  transactions,  his 
individual  character  is  not  merged  in  his  national  character,  which 
cannot  protect  him  from  the  consequences  of  those  transactions. 

ALEXANDRA,  THE,  (1906,  U.  S.) 
104  Fed.  Rep.  904. 
Brawley,  District  Court. 

[Expressed  opinion  that  consul  would  not  be  competent  to  take 
depositions  de  bene  esse;  they  not  being  "ordinary  notarial  acts,^ 
such  as  a  notary  public  could  perform  simply  by  virtue  of  his  office." 

Cites  Cortes  Co.  v.  Tannhauser,  18  Fed.  Rep.  667.  See  Bischoff- 
scheim  v.  Baltzer,  10  Fed.  Rep.  4,  contra. — Ed.] 

ALICE,  THE,  (1882,  U.  S.) 

12  Fed.  Rep.  923. 

Locke,  District  Court. 

1.  Evidence. 

That  party  had  but  one  bill  of  lading  and  did  not  deem  it  prudent  to  incur 
the  risk  of  a  sea  voyage  from  Antwerp,  when  it  might  be  needed  in  more  im- 
portant suit,  not  deemed  sufficient  to  admit  in  evidence  a  paper  certified  by 
United  States  consular  certificate  to  be  a  true  copy. 

2.  Consular  Certificate. 

A  consular  certificate  is  not  evidence. 

In  Admiralty. 

LOCKE,  D.  J.  This  is  a  suit  for  damages  and  possession  of  cargo. 
The  libellant  presents  by  his  proctor  a  paper  certified  by  the  United 
States  consul  at  AntAverp  to  be  a  correct  copy  of  an  original  bill  of 
lading  in  the  possession  of  Weber,  the  libellant,  and  asks  that  it  be 
accepted  as  evidence  in  lieu  of  the  original,  upon  the  grounds  that 
"libellants  have  but  one  copy  of  the  original  bill  of  lading,  and  they 
deem  it  best  not  to  expose  that  to  the  risk  of  long  sea  voyages  before 
they  can  judge  where  their  principal  claim  must  be  enforced.  "This 
refers  to  the  fact  of  a  fraudulent  shipment  and  false  bills  of  lading 

^  The  statute  §  1750  says  "any  notarial  act  which  any  notary  public  is  re- 
quired or  authorized  by  law  to  do  within  the  United  States." 


CONSULAR  CASES 

"which  have  appeared  m  other  suits  against  the  same  property,  and 
(924)  which  have  presumably  given  the  libellants  (they  being  con- 
signees of  a  portion  of  the  cargo  and  having  made  large  advances 
thereon)  an  action  against  the  shipper;  and  as  the  amount  v^^hich  can 
be  recovered  from  this  suit  is  but  trifling  when  compared  with  that 
involved,  the  reason  for  withholding  the  original  appears  plausible; 
but  when  more  closely  examined  I  am  not  of  the  opinion  that  it  offers 
such  an  excuse  as  would  justify  such  a  wide  departure  from  the  gen- 
eral rule  of  requiring  primary  evidence  as  permitting  the  introduc- 
tion of  the  paper  presented  would  require. 

It  is  much  better  that  private  interests  and  individual  cases  suf- 
fer delay,  rather  than  that  the  rules  of  practice  and  evidence  estab- 
lished by  the  accumulated  wisdom  of  generations  in  successive  de- 
cisions should  be  easily  broken  down  or  ignored ;  and  if  the  libellants 
have  the  originals,  the  production  of  them  can  be  made  but  a  question 
of  time,  notwithstanding  other  interests.  The  general  rule  which  re- 
quires the  best  evidence,  namely,  the  introduction  of  the  original 
documents  embodying  contracts,  has,  it  is  true,  certain  exceptions ;  but 
in  every  case  such  exception  is  based  upon  the  inability  of  the  party 
to  procure  the  original ;  and  this  has  been  so  repeatedly  affirmed,  and 
so  conclusively  established,  that  it  can  but  be  recognized  as  binding. 
The  certificate  attached  to  the  copy  states,  and  the  libellants  acknowl- 
edge, that  the  original  is  in  their  possession,  and  this  takes  the  case 
from  the  rule  of  exceptions.  I  have  been  referred  to  no  case,  nor  have 
I  been  able  to  find  one,  where  the  inconvenience  of  parties  or  prospect 
of  an  original  being  required  in  another  suit  has  been  considered  suf- 
ficient reason  for  the  acceptance  of  a  copy  in  evidence. 

International  commerce  is  of  too  great  importance  to  have  the 
possibility  of  success  of  fraud  made  any  greater  by  breaking  down 
any  of  the  well-established  protections  for  such  documents  as  bills  of 
lading  or  of  exchange;  and  although  there  are  no  suspicious  circum- 
stances connected  with  this  case,  nor  have  I  personally  any  doubt  of 
the  integrity  and  validity  of  the  libellant's  cause,  I  do  not  consider 
that  they  have  brought  themselves  within  the  rule  which  would  au- 
thorize the  acceptance  of  secondary  evidence.  Renner  v.  Bank  of 
Columbia,  9  Wheat.  581 ;  Sebree  v.  Dorr,  Id.  558 ;  Greenl.  Ev.  §  84, 
and  note;  Hart  v.  Yunt,  1  Watts,  253;  U.  S.  v.  Reyburn,  6  Pet.  352; 
Comet  V.  Williams,  20  AVall.  226;  U.  S.  v.  Lamb,  12  Pet.  1;  Stephen, 
Ev.  arts.  66,  67.  There  is  another  point  which  would  rule  out  the 
copy  as  authenticated  were  the  one  considered  insufficient.  It  has 
been  conclusively  decided  in  the  courts  of  the  United  States  that  a 
consular  certificate  (925)  cannot  be  accepted  as  evidence  except  where 
it  has  been  made  such  by  statute,   (Levy  v.  Burley,  2  Sumn.  355; 

8 


CONSULAR  CASES 

Church  V.  Hubbard,  2  Cranch  187 ;  U.  S.  v.  Mitchell,  2  Wash.  C.  C. 
188;)  and  although  the  acts  of  August  18,  1856,  and  of  January  8, 
1869,  have  added  some  force  to  consular  certificates,  and  given  consuls 
new  powers  in  taking  depositions,  the  law  has  not  been  changed  in 
the  points  in  question. 

The  application  to  admit  the  testimony  must  be  denied,  but  time 
will  be  granted  to  procure  the  original  of  the  biU  of  lading,  or  make 
a  more  satisfactory  accounting  for  its  absence. 

ALNWICK,  THE,  (1904,  U.  S.— Great  Britain) 
132  Fed.  Eep.  117. 
Adams,  District  Court. 

[To  what  extent  U.  S.  courts  will  exercise  jurisdiction  in  suits  for 
seamen's  wages. 

Will  do  so  in  case  of  American  citizens,  or  in  case  involving  ap- 
plication of  statutes  of  U.  S.  This  case  involved  the  prepayment  of 
wages  by  officer  of  British  ship  to  Americans. — Ed.] 

AMALIA,  THE,   (1880,  U.  S.— Sweden) 
3  Fed.  Rep.  652. 
Fox,  District  Court. 

FOX,  D.  J.  (Extract)  This  libel  is  instituted  by  the  second 
mate,  steward,  and  all  the  seamen,  praying  to  be  discharged  from 
further  service  in  this  bark,  and  for  the  payment  of  their  wages,  on 
account  of  a  short  allowance  of  provisions  on  a  voyage  of  124  days, 
from  Alexandria,  Egypt,  to  this  port,  and  (653)  also  on  account  of 
ill-treatment  by  the  officers  of  the  ship.  This  vessel  is  under  the 
Swedish  flag,  hailing  from  Hernosand,  in  Sweden.  The  master  is  a 
Swede.  Some  of  the  libellants  are  citizens  of  that  country,  while 
others  are  subjects  of  Denmark  and  Prussia.  Some  of  the  crew  were 
shipped  at  Hernosand,  and  some  in  New  York,  all  for  a  two-year  voy- 
age, (which  time  has  not  yet  expired,)  and  until  the  vessel's  return 
to  Sweden.  There  being  no  consul  or  other  representative  of  Sweden 
within  the  jurisdiction  of  this  court,  upon  reading  the  libel  it  was 
deemed  proper  to  grant  process  against  the  ship,  then  in  the  harbor 
or  Portland.  On  the  return  day  the  master  appeared  and  presented 
a  preliminary  objection  to  the  court's  further  proceeding  in  the  cause, 
for  the  reason  that  the  ship  was  a  foreign  vessel,  and  her  crew  must 
be  taken  as  belonging  to  the  nationality  of  her  flag,  and  that  under 
such  circumstances  the  district  court  should  not  interpose,  in  a  con- 
troversy of  this  description,  between  a  foreign  ship  and  her  crew. 

In  all  differences  between  officers  and  crew  of  a  foreign  vessel, 

9 


CONSULAR  CASES 

wliioli  have  been  presented  to  this  court,  the  court  has  heretofore,  in 
ever>'  instance,  declined  to  assume  jurisdiction  whenever  there  has 
been  within  the  district  any  representatives  of  the  government  to 
which  such  ship  belonged,  and  has  invariably  remitted  to  such  repre- 
sentative all  such  controversies  for  his  determination.  In  all  such 
cases  the  court  has  recognized  the  rule  announced  by  the  privy  council 
in  The  Nina,  2  L.  R.  P.  C.  39,  that  the  nationality  of  the  vessel, 
and  not  the  nationality  of  any  one  of  her  crew,  asking  the  interposi- 
tion of  the  court  should  regulate  the  action  of  the  court;  and  all  of 
the  crew  of  this  ship,  for  the  purpose  of  this  investigation,  must 
be  deemed  Swedish  subjects,  notwithstanding  it  appears  that  some 
of  them  are  in  fact  citizens  of  other  nationalities. 

It  cannot  admit  of  question  that  the  district  court,  unless  re- 
stricted by  some  treaty  stipulation,  has  jurisdiction,  in  a  case  for 
wages,  against  a  foreign  vessel,  and  that  the  exercise  of  such  juris- 
diction is  discretionary.  In  the  exercise  of  such  discretion  the  alle- 
gations found  in  this  libel  required  of  the  court,  in  the  absence  of 
any  Swedish  representative,  to  (654)  investigate  the  cause  so  far  as 
to  ascertain  whether  the  facts  and  reasons  alleged  for  the  crew's  dis- 
charge were  established  by  the  evidence.  The  cause,  therefore,  was 
allowed  to  proceed  to  a  hearing,  and  at  the  close  of  the  testimony  of 
the  libellants  the  attention  of  the  court  was  first  called  to  the  thir- 
teenth article  of  the  treaty  between  Sweden  and  the  United  States, 
of  July  4,  1827,  in  8  U.  S.  St.  346,  352.  By  this  article  it  was  stipu- 
lated "that  each  country  should  have  the  right  to  appoint  consuls, 
vice-consuls,  etc.,  in  the  commercial  ports  and  places  of  the  other  coun- 
try," and  that  such  consuls,  etc.,  "shall  have  the  right  as  such  to  sit 
as  judges  and  arbiters,  in  such  differences  as  may  arise  between  the 
captain  and  crews  of  the  vessel  belonging  to  the  nation  whose  interests 
are  committed  to  their  charge,  without  the  interference  of  the  local 
authorities." 

This  court  is  bound  to  recognize  and  obey  this  provision  of  the 
treaty  as  completely  as  if  the  same  were  contained  in  an  act  of  con- 
gress, and  the  question  which  arises  is  whether,  there  being  no  consul 
or  other  officer  of  Sweden  within  this  jurisdiction,  the  nearest  being  a 
vice-consul  at  Boston,  this  court  is,  by  this  provision  of  the  treaty, 
debarred  from  exercising  its  authority  in  the  present  case.  It  seems 
quite  clear  to  me  that  the  court  is  not  thus  ousted  of  its  jurisdiction. 
The  purpose  of  this  provision  was  to  provide  proper  means  of  redress 
for  the  parties  mentioned  in  the  treaty,  when  difficulties  should  occur 
between  them,  and  it  was  certainly  judicious  that  such  questions 
should  be  decided  by  the  consul,  or  other  officer  of  their  respective 
countries  conversant  with  the  language  of  the  disputants,  and  who 

10 


CONSULAR  CASES 

may  well  be  supposed  to  be  acquainted  with  the  laws  and  customs 
which  should  determine  their  respective  claims;  but,  whenever  the 
parties  are  in  such  a  position  that  they  cannot  obtain  the  services  of 
such  an  officer,  can  it  be  that  it  was  the  design  of  the  treaty  to  leave 
them  remediless,  and  to  deprive  the  local  tribunal  of  all  authority  to 
afford  any  redress,  however  urgent  the  occasion  may  be  therefor? 

If  a  Swedish  vessel  should  be  libelled  in  this  court  for  supplies 
furnished  here,  for  which  she  is  liable,  and  is  afterwards  (655)  sold 
by  a  decree  of  the  court,  can  it  be  that  the  crew,  by  this  provision  of 
the  treaty,  are  prohibited  from  proceeding  for  the  recovery  of  their 
wages  against  the  surplus  which  may  remain  in  the  registry,  and 
that  the  court  cannot  decree  the  payment  therefrom  of  their  respective 
claims  for  wages,  but  must,  if  claims  of  subordinate  rank  are  presented 
by  our  own  citizens,  allow  such  claimants  to  absorb  the  surplus,  with- 
out power  to  afford  the  seaman  any  redress?  I  hold  that  a  court  of 
admiralty  would  require,  in  a  treaty,  the  most  positive,  absolute 
prohibition  against  assuming  jurisdiction  in  such  a  case,  and  would 
insist  on  language  which  would  not  admit  of  any  doubtful  significa- 
tion, before  it  would  aclmowledge  that  its  authority  to  protect  the 
seaman  was  thus  abrogated.  If  in  any  case  the  power  still  remains 
in  the  court,  and  it  has  authority  to  act  when  there  is  no  consul  within 
its  jurisdiction,  the  authority  must  exist  in  all  such  cases;  and  it  is 
only  a  question  of  judicial  discretion  whether  the  circumstances  of 
any  case  are  such  as  to  require  the  court  to  interpose  and  take  cogni- 
zance of  the  dispute. 

ANNE,  THE,  (1818,  U.  S.) 

3  Wheat.  435;  5  Moore  94. 
Story,  Supreme  Court. 

The  captors  are  competent  witnesses  upon  an  order  for  further  proof,  where 
the  benefit  of  it  is  extended  to  both  parties. 

The  captors  are  always  competent  witnesses,  as  to  the  circumstances  of  the 
capture,  whether  it  be  joint,  collusive,  or  within  neutral  territory. 

It  is  not  competent  for  a  neutral  consul,  without  the  special  authority  of  his 
government,  to  interpose  a  claim  on  account  of  the  violation  of  the  territorial 
jurisdiction  of  his  country. 

Quaere,  Whether  such  a  claim  can  be  interposed,  even  by  a  public  minister, 
without  the  sanction  of  the  government  in  whose  tribunals  the  cause  is  pending, 

A  capture,  made  within  neutral  territory,  is,  as  between  the  belligerents, 
rightful ;   and  its  validity  can  only  be  questioned  by  the  neutral  state. 

If  the  captured  vessel  commence  hostilities  upon  the  captor,  she  forfeits  the 
neutral  protection,  and  the  capture  is  not  an  injury  for  which  redress  can  be 
sought  from  the  neutral  sovereign. 

Irregularities  on  the  part  of  the  captors,  originating  from  mere  mistake 
or  negligence,  which  work  no  irreparable  mischief,  and  are  consistent  with  good 
faith,  will  not  forfeit  their  rights  of  prize. 

11 


CONSULAE  CASES 

APPEAL  to  the  circuit  court  for  the  District  of  Maryland. 

(436)  The  British  ship  Anne,  with  cargo  belonging  to  a  British 
subject,  was  captured  by  the  privateer  Ultor,  while  lying  at  anchor 
near  the  Spanish  part  of  the  Island  of  St.  Domingo,  on  the  13th 
of  March,  1815,  and  carried  into  New  York  for  adjudication.  The 
master  and  supercargo  were  put  on  shore  at  St.  Domingo,  and  all 
the  rest  of  the  crew,  except  the  mate,  carpenter  and  cook,  were  put 
on  board  the  capturing  ship.  After  arrival  at  New  York,  the  deposi- 
tion of  the  cook  only  was  taken,  before  a  commissioner  of  prize,  and 
that,  together  with  the  ship's  papers,  was  transmitted  by  the  com- 
missioner, under  seal,  to  the  district  judge  of  Maryland  district,  to 
which  district  the  Anne  was  removed,  by  virtue  of  the  provisions  of 
the  act  of  congress  of  the  27th  of  Janaury,  1813,  ch.  478. 

Prize  proceedings  were  duly  instituted  against  the  ship  and 
cargo,  and  a  claim  was  afterwards  interposed  in  behalf  of  the  Spanish 
consul,  claiming  restitution  of  the  property,  on  account  of  an  asserted 
violation  of  the  neutral  territory  of  Spain.  The  testimony  of  the 
carpenter  was  thereupon  taken  by  the  claimant,  and  the  captors 
were  also  admitted  to  give  testimony  as  to  the  circumstances  of  the 
capture ;  and,  upon  the  whole  evidence,  the  district  court  rejected  the 
claim,  and  pronounced  a  sentence  of  condemnation  to  the  captors. 
Upon  appeal  to  the  circuit  court,  peace  having  taken  place,  the  British 
owner,  ]\Ir.  Richard  Scott,  interposed  a  claim  for  the  property,  and 
the  decree  of  the  district  court  was  affirmed,  pro  forma,  to  bring  the 
cause  for  a  final  adjudication  before  this  court. 

(437)  Mr.  Harper,  for  the  appellant  and  claimant,  argued,  that 
the  captors  were  incompetent  witnesses,  on  the  ground  of  interest, 
except  when  further  proof  was  imparted  to  them ;  ^  and  that  they 
were  not  entitled  to  the  benefit  of  further  proof  in  this  case,  being  in 
delicto. 

The  irregularity  of  their  proceedings,  and  the  violation  of  the 
neutral  territory,  would  not  only  exclude  them  from  further  proof, 
but  forfeit  their  rights  of  prize.  The  testimony  being  irregular,  it 
must  appear,  affirmatively,  that  it  was  taken  by  consent,  where  the 
irregularity  consists,  not  in  a  mere  omission  of  form,  but  in  the  in- 
competency or  irrelevancy  of  the  evidence.  The  testimony  of  the 
captors  being  excluded  from  the  case,  the  violation  of  the  neutral 
territory  would  appear  uncontradicted.  The  text  writers  affirm  the 
immunity  of  the  neutral  territory  from  hostile  operations  in  its  ports, 
bays  and  harbors,   and  within  the  range   of  cannonshot  along  its 

*  The  Adriana,  1  Rob.  34;  The  Haabet,  6  Rob.  54;  L'Amitie,  Id.  269,  note  a. 

12 


CONSULAR  CASES 

coasts.'  Nor  can  it  be  used  as  a  station  from  which  to  exercise  hos- 
tilities.* As  to  the  authority  by  which  the  claim  was  interposed,  the 
Spanish  consul's  was  sufficient  for  that  purpose;  especially  under  the 
peculiar  circumstances  of  the  times  when,  on  account  of  the  unsettled 
state  of  the  government  in  Spain,  no  minister  from  that  country  was 
received  by  our  government,  (438)  but  the  former  consuls  were  con- 
tinued in  the  exercise  of  their  functions  by  its  'permission.  In  one 
of  the  cases  in  the  English  books,  the  Portugese  consul  was  allowed 
to  claim  on  account  of  violated  territory,  although  it  does  not  appear 
that  he  had  any  special  instructions  from  his  sovereign  for  that 
purpose.*  But  even  supposing  the  powers  of  a  consul  not  ade- 
quate to  this  function,  whence  arises  the  necessity  that  the  neutral 
government  should  interfere  in  general?  Because  the  enemy  pro- 
prietor is  absolutely  incapable  of  interposing  a  claim  on  this  or  any 
other  ground.  But  here  the  incapacity  of  the  claimant  is  removed, 
his  persona  standi  in  judicio  being  restored  by  the  intervention  of 
peace.  He  may,  consequently,  assert  his  claim  upon  every  ground 
which  shows  that  the  capture,  though  of  enemy's  property,  was  orig- 
inally unlawful  and  void. 

Mr.  D.  B.  Ogden  and  Mr,  Winder,  contra,  contended,  that  the 
captors  were  admissible  witnesses  in  this  case,  as  they  are  in  all  cases 
respecting  the  circumstances  of  the  capture ;  such  as  collusive  and  joint 
captures,  where  the  usual  simplicity  of  the  prize  proceedings  is  nec- 
essarily departed  from. 

So,  also,  their  testimony  is  generally  admitted  on  further  proof." 
A  claim  founded  merely  upon  the  allegation  of  a  violation  of  neutral 
territory  is  a  case  peculiarly  requiring  the  (439)  introduction  of  evi- 
dence from  all  quarters,  the  captors  being  as  much  necessary  witnesses 
of  the  transaction  as  are  the  captured  persons.  Every  capture  of 
enemy's  property,  wheresoever  made,  is  valid,  prima  facie;  and  it  rests 
with  the  neutral  government  to  interfere,  where  the  capture  is  made 
within  neutral  jurisdiction.  The  enemy  proprietor  has  no  persona 
standi  in  judicio  for  this  or  any  other  purpose.  But  here  the  sug- 
gestion of  a  violation  of  the  neutral  territory  is  not  made  by  proper 
authority.  All  the  cases  show  that  a  claim  for  this  purpose  can  only 
be  interposed  by  authority  of  the  government  whose  territorial  rights 

*Vattel,  L.  3,  ch.  7,  s.  132;  Id.  L.  1  Ch.  23,  s.  289;  Bynk.  Q.  J.  Pub.  L. 
1  c.  b;  Martens  L.  8,  s.  ch.  6,  s.  6;  Azuni,  part  2,  ch.  5,  Art.  1,  s.  15. 

» The  Twee  Gebroeders,  3  Rob.  162 ;  The  Anna,  5  Rob.  332. 

*  The  Vrow  Anna  Catherina,  5  Rob.  15. 

"The  Maria,  1  Rob.  340;  The  Resolution,  6  Rob.  13;  The  Grotius,  9 
Cranch,  368;  The  Sally,  1  Gallis.  401;  The  George,  The  Bothnea,  and  The  Jann- 
stoff,  1  Wheaton,  408.     Wheat.  3. 

13 


CONSULAR  CASES 

have  been  violated.*  The  public  ministers  of  that  government 
may  make  the  claim,  because  they  are  presumed  to  be  fully  empowered 
for  that  purpose.  But  a  consul  is  a  mere  commercial  agent,  and  has 
none  of  the  diplomatic  attributes  or  privileges  of  an  embassador;  he 
must,  therefore,  be  specially  empoAvered  to  interpose  the  claim,  in 
order  that  the  court  may  be  satisfied  that  it  comes  from  the  offended 
government.  A  consul  may,  indeed,  claim  for  the  property  of  his 
fellow-subjects,  but  not  for  the  alleged  violation  of  the  rights  of  his 
sovereign ;  because  it  is  for  the  sovereign  alone  to  judge  when  those 
rights  are  violated,  and  how  far  policy  may  induce  him  silently  to 
acquiesce  in  those  acts  of  the  belligerent  by  which  they  are  supposed 
to  be  infringed.  There  is  only  one  case  in  the  English  books,  where  a 
claim  of  this  sort  appears  to  have  been  made  (440)  by  a  consul; 
and  from  the  report  of  that  case  it  may  be  fairly  inferred  that  he 
was  specially  directed  by  his  government  to  interpose  the  claim.^ 
But  even  the  Spanish  government  itself  has  not  conducted  with  that 
impartiality  between  the  belligerents  which  entitles  it  to  set  up  this 
exemption.'  Its  territory  was,  during  the  late  war,  permitted  to 
be  made  the  theatre  of  British  hostility,  and  in  various  instances  was 
violated  with  impunity.  Spain  was  incapable,  or  imwilling,  at  that 
time,  to  maintain  her  neutrality  in  any  part  of  her  immense  do- 
minions. In  this  very  case  the  captured  vessel  was  not  attacked ;  she 
was  the  aggressor,  and,  in  self-defence,  the  privateer  had  not  only  a 
right  to  resist,  but  to  capture.  The  local  circumstances  alone  would 
have  prevented  the  Spanish  government  from  protecting  the  in- 
violability of  its  territory,  on  a  desert  coast,  and  out  of  the  reach  of 
the  guns  of  any  fortress.  Bynkershoek  and  Sir  "William  Scott  hold, 
that  a  flying  enemy  (441)  may  lawfully  be  pursued  and  taken  in 
such  places,  if  the  battle  has  been  commenced  on  the  high  seas.' 
A  fortioro,  may  an  enemy,  who  commences  the  first  attack  within 
neutral  jurisdiction,  be  resisted  and  captured.  But  should  all  these 
grounds  fail,  the  captors  may  stand  upon  the  effect  of  the  treaty 
of  peace  in  quieting  all  titles  of  possession  arising  out  of  the  war.* 
As  between  the  American  captors  and  the  British  claimant,  the  pro- 
prietary interest  of  the  (442)  latter  was  completely  devested  by  the 
capture.  The  title  of  the  captors  acquired  in  war  was  confirmed  by 
bringing  the  captured  property  hifra  praesidia.  The  neutral  govern- 
ment has  no  right  to  interpose,  in  order  to  prevent  the  execution  of 

•The  Twee   Gebroeders,    3    Rob.    162,    note;    The   Dilligentia,    Dodson,   412; 
The  Eliza  Ann,  Id.  244. 

^  The  Vrow  Anna  Catharina,  5  Rob.  15. 

•The  Eliza  Ann,  Dodson,  244,  24.5. 

» The  Anna,  5  Rob.  34.5. 

'  Wheaton  on  Capt.  307,  and  the  authorities  there  cited. 

14 


CONSULAR  CASES 

the  treaty  of  peace  in  this  respect,  by  compelling  restitution  to 
British  subjects  contrary  to  the  treaty  to  which  they  are  parties. 
The  neutral  government  may,  perhaps,  require  some  atonement  for 
the  violation  of  its  territory,  but  it  has  no  right  to  require  that  this 
atonement  shall  include  any  sacrifice  to  the  British  claimant. 

Mr.  Harper,  in  reply,  insisted,  that  the  claim  of  neutral  terri- 
tory, as  invalidating  the  capture,  might  be  set  up  by  a  consul  as  well 
as  any  other  public  minister.  He  may  be  presumed  to  have  been 
authorized  to  interpose  it  by  his  government;  and  in  the  case  of 
The  Vrow  Anna  Catharina'  it  does  not  appear  that  any  proof 
was  given  to  the  court  that  the  Portugese  consul  was  specially  in- 
structed to  make  the  suggestion.  However  partial  and  unjustifiable 
may  have  been  the  conduct  of  Spain  in  the  late  war,  it  has  not  yet 
been  considered  by  the  executive  government  and  the  legislature 
(who  are  exclusively  charged  with  the  care  of  our  foreign  relations) 
as  forfeiting  the  right  still  to  be  considered,  in  courts  of  justice,  as  a 
neutral  state.  In  the  case  of  The  Eliza  Ann,*  Sir  W.  Scott  went 
on  the  ground  of  the  (443)  legal  existence  of  a  war  between  Great 
Britain  and  Sweden,  although  declared  by  Sweden  only;  and  that  the 
place  where  the  capture  was  made  was  in  the  hostile  possession  of 
the  British  arms.  The  observations  throA\Ti  out  by  him  in  delivering 
his  judgment,  as  to  the  necessity  of  the  neutral  state  maintaining  a 
perfect  impartiality  between  the  belligerents,  in  order  to  support  a 
claim  of  this  sort  in  the  prize  court,  were  superfluous;  because  the 
facts  showed  that  Sweden  was  in  no  respect  to  be  considered  as  neu- 
tral, having  openly  declared  war  against  Great  Britain,  and  a  counter 
declaration  being  unnecessary  to  constitute  a  state  of  hostilities.  As  to 
the  alleged  resistance  of  the  captured  vessel,  it  was  a  premature  de- 
fence only,  commenced  in  consequence  of  apprehensions  from  Car- 
thagenian  rovers,  which  frequented  those  seas;  and  being  the  result 
of  misapprehension,  could  confer  no  right  to  capture,  where  none 
previously  existed.  Being  in  a  neutral  place,  the  vessel  was  entitled 
to  the  privileges  of  a  neutral.  Resistance  to  search  does  not  always 
forfeit  the  privileges  of  neutrality;  it  may  be  excused  under  circum- 
stances of  misapprehension,  accident,  or  mistake."  But  resistance 
to  search  by  a  neutral  on  the  high  seas  is  generally  unjustifiable. 
Here  the  right  to  search  could  not  exist,  and,  consequently,  an  at- 
tempt to  exercise  it  might  lawfully  be  raised.  Finding  the  neutral 
territory  no  protection,  the  captured  vessel  resumed  her  rights  as  an 
enemy,  and  attempted  to  defend  herself.     The  titles  of  possession, 

»5  Eob.  15. 

^Dodson,  244. 

"  The  St.  Juan  Baptista,  &c.,  5  Eob.  36. 

15 


CONSULAR  CASES 

which  are  said  (444)  to  be  confirmed  by  a  treaty  of  peace,  are  those 
which  arise  from  sentences  of  condemnation,  valid  or  invalid;  but  the 
principle  cannot  be  applied  to  a  mere  tortious  possession,  unconfirmed 
by  any  sentence  of  condemnation  like  the  present.  The  capture  being 
invalid  ah  initio,  and  the  former  proprietor  being  rehabilitated  in  his 
rights  by  the  intervention  of  peace,  may  interpose  his  claim  at  any 
time  before  a  final  sentence  of  condemnation. 

ST0R3^  J.,  delivered  the  opinion  of  the  court:  The  first  question 
which  he  presented  to  the  court  is,  whether  the  capture  was  made 
within  the  territorial  limits  of  Spanish  St.  Domingo.  The  testimony 
of  the  carpenter  and  cook  of  the  captured  vessel  distinctly  asserts 
that  the  ship,  at  the  time  of  the  capture,  was  laying  at  anchor  about 
a  mile  from  the  shore  of  the  island.  The  testimony  of  the  captors 
as  distinctly  asserts  that  the  ship  then  lay  at  a  distance  of  from  four 
or  five  miles  from  the  shore.  It  is  contended,  by  the  counsel  for  the 
claimants,  that  captors  are  in  no  cavses  admissible  witnesses  in  prize 
causes,  being  rendered  incompetent  by  reason  of  their  interest.  It 
is  certainly  true,  that,  upon  the  original  hearing,  no  other  evidence 
is  admissible  than  that  of  the  ship's  papers,  and  the  preparatory  ex- 
aminations of  the  captured  crew.  But,  upon  an  order  for  farther 
proof,  where  the  benefit  of  it  is  allowed  to  the  captors,  their  attesta- 
tions are  clearly  admissible  evidence.  This  is  the  ordinary  course 
of  prize  courts,  especially  where  it  becomes  material  to  ascertain  the 
circumstances  of  the  capture;  for  in  such  cases  the  (445)  facts  lie 
as  much  within  the  knowledge  of  the  captors  as  the  captured ;  and  the 
objection  of  interest  generally  applies  as  strongly  to  the  one  party 
as  to  the  other.  It  is  a  mistake  to  suppose  that  the  common  law 
doctrine,  as  to  competency,  is  applicable  to  prize  proceedings.  In 
courts  of  prize,  no  person  is  incompetent  merely  on  the  ground  of 
interest.  His  testimony  is  admissible,  subject  to  all  exceptions  as  to 
its  credibility.  The  cases  cited  at  the  argument  distinctly  support 
this  position ;  and  they  are  perfectly  consistent  with  the  principle  by 
which  courts  of  prize  profess  to  regulate  their  proceedings.  We  are 
therefore  of  opinion  that  the  attestations  of  the  captors  are  legal  evi- 
dence in  the  case,  and  it  remains  to  examine  their  credit.  And  with- 
out entering  into  a  minute  examination,  in  this  conflict  of  testimony, 
we  are  of  opinion  that  the  weight  of  evidence  is,  decidedly,  that  the 
capture  was  made  within  the  territorial  limits  of  Spanish  St.  Domingo. 
And  this  brings  us  to  the  second  question  in  the  cause;  and  that 
is,  whether  it  was  competent  for  the  Spanish  consul,  merely  by  virtue 
of  his  oflSce,  and  without  the  special  authority  of  his  government,  to 
interpose  a  claim  in  this  case  for  the  assertion  of  the  violated  rights 

16 


CONSULAR  CASES 

of  his  sovereign.  "We  are  of  opinion  that  his  office  confers  on  him 
no  such  legal  competency.  A  consul,  though  a  public  agent,  is  sup- 
posed to  be  clothed  with  authority  only  for  commercial  purposes.  He 
has  an  undoubted  right  to  interpose  claims  for  the  restitution  of 
property  belonging  to  the  subjects  of  his  own  country;  but  he  is  not 
considered  as  a  minister,  or  a  diplomatic  agent  of  his  sovereign  (446) 
intrusted,  by  virtue  of  his  office,  with  authority  to  represent  him  in  his 
negotiations  with  foreign  states,  or  to  vindicate  his  prerogatives. 
There  is  no  doubt  that  his  sovereign  may  specially  intrust  him  with 
such  authority;  but  in  such  case  his  diplomatic  character  is  super- 
added to  his  ordinary  powers,  and  ought  to  be  recognized  by  the 
government  within  whose  dominions  he  assumes  to  exercise  it.  There 
is  no  suggestion,  or  proof,  of  any  such  delegation  of  special  authority 
in  this  case;  and  therefore  we  consider  this  claim  as  asserted  by  an 
incompetent  person,  and  on  that  ground  it  ought  to  be  dismissed.  It 
is  admitted  that  a  claim  by  a  public  minister,  or  in  his  absence,  by  a 
charge  d'  affaires,  in  behalf  of  his  sovereign  would  be  good.  But  in 
making  this  admission,  it  is  not  to  be  understood  that  it  can  be  made  in 
a  court  of  justice  without  the  assent  or  sanction  of  the  government  in 
whose  courts  the  cause  is  depending.  That  is  a  question  of  great 
importance,  upon  which  this  court  expressly  reserve  their  opinion, 
until  the  point  shall  come  directly  in  judgment.^ 

The  claim  of  the  Spanish  government  for  the  violation  of  its 
neutral  territory  being  thus  disposed  of,  it  is  next  to  be  considered 
whether  the  British  claimant  can  assert  any  title  founded  upon  that 
circumstance.  By  the  return  of  peace,  the  claimant  became  rehabili- 
tated with  the  capacity  to  sustain  a  suit  in  the  courts  of  the  country ; 
and  the  argument  is,  that  a  capture  made  in  a  neutral  territory  is 
void;  and  (447)  therefore,  the  title  by  capture  being  invalid,  the 
British  owner  has  a  right  to  restitution.  The  difficulty  of  this  argu- 
ment rests  in  the  incorrectness  of  the  premises.  A  capture  made 
within  neutral  waters  is,  as  between  enemies,  deemed,  to  all  intents 
and  purposes,  rightful;  it  is  only  by  the  neutral  sovereign  that  its 
legal  validity  can  be  called  in  question ;  and  as  to  him,  and  him  only, 
it  is  to  be  considered  void.  The  enemy  has  no  right  whatsoever; 
and  if  the  neutral  sovereign  omits  or  declines  to  interpose  a  claim,  the 
property  is  condemnable,  jure  delli,  to  the  captors.  This  is  a  clear 
result  of  the  authorities;  and  the  doctrine  rests  on  well-established 
principles  of  public  law.* 

*See  Viveash  v.  Becker,  3  Maule  and  Selwyn,  284,  as  to  the  extent  of  the 
powers  and  privileges  of  consuls. 

*  The  same  rule  is  adhered  to  in  the  prize  practice  of  France,  and  was 
acted  on  in  the  case  of  The  Sancta  Trinita,  a  Kussian  vessel,  captured  within  a 

17 


CONSULAR  CASES 

There  is  one  other  point  in  the  ease  which,  if  all  other  difficulties 
were  removed,  would  be  decisive  against  the  claimant.  It  is  a  fact  that 
the  captured  ship  first  commenced  hostilities  against  the  privateer. 
This  is  admitted  on  all  sides ;  and  it  is  no  excuse  to  assert  that  it  was 
done  under  a  mistake  of  the  national  character  of  the  privateer,  even 
if  this  were  entirely  made  out  in  the  evidence.  While  the  ship  was 
Ij'ing  in  neutral  waters,  she  was  bound  to  abstain  from  all  hostilities, 
except  in  self  defence.  The  privateer  had  an  equal  title  with  herself 
to  the  neutral  protection,  and  was  in  no  default  in  approaching  the 
(448)  coast  without  showing  her  national  character.  It  was  a  viola- 
tion of  that  neutrality  which  the  captured  ship  was  bound  to  observe, 
to  commence  hostilities  for  any  purpose  in  these  waters;  for  no 
vessel  coming  thither  was  bound  to  submit  to  search,  or  to  account 
to  her  for  her  conduct  or  character.  "When,  therefore,  she  commenced 
hostilities,  she  forfeited  the  neutral  protection,  and  the  capture  was 
no  injury  for  which  any  redress  could  be  rightfully  sought  from  the 
neutral  sovereign. 

The  conclusion  from  all  these  views  of  the  case  is,  that  the  ship 
and  cargo  ought  to  be  condemned  as  good  prize  of  war.  And  the 
only  remaining  inquiry  is,  whether  the  captors  have  so  conducted 
themselves  as  to  have  forfeited  the  rights  given  by  their  commission,  so 
that  the  condemnation  ought  to  be  to  the  United  States.  There  can  be 
no  doubt  that  if  captors  are  guilty  of  gross  misconduct,  or  laches, 
in  violation  of  their  duty,  courts  of  prize  will  visit  upon  them  the 
penalty  of  a  forfeiture  of  the  rights  of  prize,  especially  when  the 
government  chooses  to  interpose  a  claim  to  assert  such  forfeiture. 
Cases  of  gross  irregularity,  or  fraud,  may  readily  be  imagined  in  which 
it  would  become  the  duty  of  this  court  to  enforce  this  principle  in  its 
utmost  rigor.  But  it  has  never  been  supposed  that  irregularities, 
which  have  arisen  from  mere  mistake,  or  negligence,  when  they  work 
no  irreparable  mischief,  and  are  consistent  with  good  faith,  have 
ordinarily  induced  such  penal  consequences.  There  were  some  ir- 
regularities in  this  case;  but  there  is  no  evidence  upon  the  record 
from  which  we  can  infer  that  there  was  any  fraudulent  (449)  sup- 
pression, or  any  gross  misconduct  inconsistent  with  good  faith;  and, 
therefore,  we  are  of  opinion  that  condemnation  ought  to  be  to  the 
captors. 

It  is  the  unanimous  opinion  of  the  court  that  the  decree  of  the 
circuit  court  be  affirmed  with  costs. 

Decree  affirmed. 

mile  and  a  half  of  the  coast  of  Spain;  but  the  counsel  of  prizes  refused  restitu- 
tion, because  the  Sjsanish  government  did  not  interpose  a  claim  on  account  of  its 
violated  territory.    Bonnemant's  Translation  of  DeHarbeu,  torn,  i,  p.  117. 

18 


CONSULAR  CASES 

ANTELOPE,  THE,  (1825,  U.  S.) 

10  Wheat.  66. 

Marshall,  Supreme  Court- 

(Extract)  The  consuls  of  Spain  and  Portugal  respectively,  de- 
mand these  African  slaves,  who  have,  in  the  regular  course  of  legiti- 
mate commerce,  been  acquired  as  property  by  the  subjects  of  their 
respective  sovereigns,  and  claim  their  restitution  under  the  laws  of 
the  United  States. 

ARNOLD  V.  THE  UNITED  INSURANCE  COMPANY,  (1800,  U.  S.) 

1  Johns.  Cases  363 ;  1  N.  Y.  Commou  Law  Eeports  354. 

Kent  and  Lansing,  Supreme  Court  of  New  York. 

KENT.  (Extract)  As  long  as  public  ministers  and  consuls 
confine  themselves  to  the  business  appertaining  to  their  public  char- 
acters, their  domicile  is  not  changed,  but  remains  in  the  country 
from  which  they  are  deputed,  and  they  are  not  subjects  of  the  coun- 
try in  which  they  reside.  (Vattel,  231;  Martens,  155,  229.)  But  if 
they  engage  in  business  inconsistent  with  or  foreign  to  their  public 
or  diplomatic  (368)  character,  they  are  thenceforth  to  be  considered 
as  domiciliating  themselves  abroad,  and  becoming  as  subjects,  amen- 
able to  the  ordinary  jurisdiction  of  the  state.  (Vattel,  711-714.)  As 
they  contribute  by  their  industry  and  property,  when  engaged  in 
trade,  to  aid  the  government  under  which  they  reside,  it  is  but  reason- 
able that  the  enemies  of  that  government  should  have  a  right  to  hold 
their  property  responsible  as  that  of  an  enemy. 

I  am  of  opinion,  therefore,  that  Mr.  Hawley,  by  becoming  a  mer- 
chant at  the  Havanna,  a  character  wholly  distinct  from  his  consular 
functions,  was  rightfully  considered  as  establishing  his  domicil  there ; 
and  that  he  became,  in  regard  to  his  transactions  as  a  merchant,  and 
in  reference  to  the  enemies  of  Spain,  a  Spanish  subject. 

LANSING.  (Extract)  But  it  has  been  urged,  that  as  Hawley 
was  a  consul  of  the  United  States,  he  is,  as  such,  in  some  measure 
entitled  to  the  protection  of  the  law  of  nations. 

The  admission  of  consuls  depends  either  upon  express  conven- 
tion or  the  permission  of  the  sovereign  in  whose  dominions  they  reside. 
(Vattel,  132.)  But  by  receiving  them,  the  sovereign  strictly  engages 
to  allow  them  all  the  liberty  and  safety  necessary  in  the  proper 
discharge  of  their  functions.  What  personal  immunities  a  consul 
is  particularly  entitled  to  it  is  not  necessary,  on  the  present  occasion, 
to  consider;  for  whatever  they  may  be,  they  can  only  be  such  as  to 
preserve  his  safety  and  independence  in  the  discharge  of  those  func- 

19 


CONSULAR  CASES 

tions.  An  exemption  from  imposts  is  not  essential  to  his  quality  of 
consul;  if  he  engages  in  mercantile  speculations,  he  is  of  course  sub- 
ject to  all  the  burdens  which  other  inhabitants,  not  subjects  of  the 
country  in  which  he  resides,  are  liable  to.  If  there  is  any  difference 
between  his  situation  and  that  of  other  strangers,  it  may,  perhaps, 
arise  from  his  being,  as  an  aclmowledged  public  functionary  of  a 
foreign  nation,  exempted  from  personal  service  in  any  hostile 
enterprise.  This  however,  (372)  will  not  so  effectually  disen- 
gage him  from  the  interests  of  the  society  in  which  he  resides  as 
to  make  him  completely  a  neutral.  His  property  must  contribute  to 
the  support  of  the  war. 

ASPINWALL  V.  THE  QUEEN'S  PROCTOR,    (1839,   Great  Britain— 

U.  S.) 

2  Curt.  Eccl.  241. 

Sir  Herbert  Jenner,  Prerogative  Court  of  Canterbury. 

\ 
SIR  HERBERT  JENNER.    The  question  arises  with  respect  to 

the  right  of  the  American  consul  in  this  country  to  take  administration 
of  the  goods  of  an  American  subject,  clearly  domiciled  in  America, 
who  died  in  itinere,  leaving  personal  property  here,  and  money  in  the 
hands  of  a  merchant  in  this  town. 

It  appears,  that  on  the  death  of  Mr.  Hammond,  (245)  Colonel 
Aspinwall,  the  American  consul  in  this  country,  took  possession  of  the 
property  about  him,  paid  his  funeral  and  other  necessary  expenses, 
but  upon  application  to  Messrs.  Baring  and  Co.  they  declined  to  pay 
over  the  money  in  their  hands  until  letters  of  administration  were 
taken  out,  and  they  could  obtain  a  valid  discharge.  An  application 
was  accordingly  made  to  the  court  to  grant  administration  to  Colonel 
Aspinwall,  founded  on  an  act  of  congress,  authorizing  American  con- 
suls to  take  possession  of  the  effects  of  citizens  of  the  United  States 
dying  in  foreign  countries;  but  the  court  was  of  the  opinion  that  it 
could  not  grant  such  an  application  on  an  ex  parte  motion,  and  some 
discussion  took  place  as  to  the  form  of  the  decree  which  should  go  out. 
Eventually,  a  decree  went  out  against  all  persons,  and  an  intimation 
was  given,  that  if  no  person  appeared  to  shew  cause  against  it,  the 
court  would  grant  administration  to  Colonel  Aspinwall.  The  de- 
cree was  served  in  the  usual  manner,  and  an  appearance  was  given  on 
behalf  of  the  crown,  praying  that  the  court  would  reject  the  claim 
of  Colonel  Aspinwall.  It  is  said  that  the  crown  has  no  persona  standi, 
for  that  the  deceased,  being  a  domiciled  foreign  subject,  dying  in 
itinere,  the  right  to  his  property,  locally  situated  in  this  country,  is 
governed  by  the  law  of  the  country  to  which  he  belonged.    It  is  true, 

20 


CONSULAR  CASES 

that  by  the  law  and  practice  of  this  court,  the  distribution  in  such 
cases  is  to  be  according  to  the  law  of  the  country  in  which  the  party 
was  domiciled  at  his  death ;  but  the  property  being  in  this  country  the 
court  will  grant  administration  to  some  person  who  is  entitled  to  the 
custody  of  the  property,  and  has  au-(246)thority  to  pay  the  debts  due 
from  the  deceased;  and  the  court,  in  deciding  the  question,  whether 
Colonel  Aspinwall  is  or  is  not  entitled  to  the  administration,  must  be 
guided  by  the  law  and  practice  of  this  court.  Now  I  cannot  say  that 
the  crown  has  no  right  to  interfere  with  property  belonging  to  for- 
eigners, in  order  to  protect  that  property;  that  in  all  cases  where 
foreigners  die  intestate  in  this  country,  the  crowTi  has  no  right  to 
appear  and  shew  cause  why  a  person  claiming  the  administration 
ought  not  to  have  it.  The  crown  has  a  right  to  the  custody  of  the 
property  till  a  superior  title  to  it  can  be  shewn.  This  law  is  not 
peculiar  to  our  country ;  it  is  the  general  law,  and  it  cannot  be  the  gen- 
eral law  of  the  United  States  that  British  consuls  are  entitled  to  ad- 
minister the  estates  of  British  subjects  dying  in  the  United  States, 
or  why  was  the  special  law  of  New  York  passed,  which  is  mentioned  in 
the  affidavit?  What  is  the  law  upon  which  Colonel  Aspinwall  rests 
his  claim?  An  act  of  congress  passed  in  1792,  for  the  guidance  of 
consuls  in  foreign  countries,  giving  them  certain  powers  and  author- 
ities so  far  as  is  consistent  with  the  law  of  the  country  to  which  they 
are  accredited;  that  is,  the  power  of  the  consuls  is  to  be  governed 
by  the  law  of  the  country  to  which  they  are  accredited,  and  not  by 
the  law  of  the  country  from  which  they  are  sent.  There  may  be 
grave  reasons  why  the  law  of  the  United  States  should  be  different 
from  the  law  of  this  country,  but  if  there  is  a  difference,  then  no 
authority  at  all  is  given  to  the  consuls.  The  question,  therefore,  is 
not  whether  the  law  of  America  authorizes  the  consul  to  take  posses- 
sion of  the  property  of  its  sub-(247)jects  dying  in  this  country,  but 
whether  the  law  of  this  country  permits  it,  and  it  is  upon  the  ground 
that  it  does  so,  that  Colonel  Aspinwall  applies  for  letters  of  adminis- 
tration. 

I  am  not  aware  of  any  case  in  which  it  has  been  held  that,  by  the 
law  of  this  country,  it  is  competent  to  a  foreign  consul  to  take  pos- 
session of  the  property  of  a  foreigner  dying  here,  in  itinere,  domiciled 
in  his  own  country.  In  the  case  of  Sidy  Hamet,  the  emperor  of 
Morocco  claimed  not  the  custody  of  the  property  but  the  interest  it- 
self;  the  jus  in  re  was  in  him,  and  if  it  could  be  shewn  that  the 
property  in  this  ease  has  devolved  to  the  American  government,  the 
court  would  be  inclined  to  grant  letters  of  administration  to  the  con- 
sul. But  it  is  only  to  hold  it  in  trust,  and  if  no  claim  is  made  to  the 
property,  then  the  treasury  of  the  United  States  would  be  entitled 

21 


CONSULAK  CASES 

to  take  it.  and  it  is  not  shewTi  that  Mr.  Hammond  died  without  rela- 
tions. 

Is  it,  then,  the  law  and  practice  of  this  court,  that  such  an  admin- 
istration sliould  be  granted?  I  apprehend  not,  and  that  the  crown  is 
the  party  to  see  that  the  property  of  any  person  dying  in  its  dominions 
gets  into  proper  hands. 

It  has  been  said,  that  by  the  law  of  the  United  States,  British 
consuls  may  take  possession  of  the  property  of  British  subjects  in 
similar  circumstances.  But  this  is  not  by  the  law  of  nations,  but  by 
custom  or  express  enactment,  and  it  is  not  a  law  which  this  country  is 
boimd  to  follow :  this  country  has  not  adopted  the  principle  of  reci- 
procity in  this  respect. 

I  am  of  opinion  that  there  is  not  sufficient  evidence  to  shew 
that  the  administration  ought  to  be  (248)  granted,  as  prayed,  to 
Colonel  Aspinwall,  and  I  reject  his  petition.  No  claim  is  made  by 
the  crown. 

ATLANTIC,  THE,  (1849,  U.  S.) 
Abb.  Adm.  451;  Fed.  Cases  620. 
Belts,  Circuit  Court. 

(462)  BETTS,  J:  (Extract)  The  libellant  shipped  at  New  Lon- 
don in  July,  1845,  as  carpenter's  mate,  on  a  whaling  voyage. 

In  consequence  of  injuries  received  by  him,  in  the  discharge  of 
his  duty,  he  was  taken  on  shore  in  the  port  of  Lahaina,  in  the  island 
of  Maui,  one  of  the  Sandwich  Islands,  and  left  in  (463)  the  hospital 
there.  The  ship  proceeded  on  her  voyage,  and  after  completing  her 
cruise,  touched  at  Maui,  on  her  return  home,  and  received  the  libel- 
lant on  board,  he  being  placed  there  as  a  sick  and  disabled  seaman 
by  the  consul,  and  was  brought  to  the  United  States,  the  master 
receiving  $10  pa.ssage  money  from  the  consul  therefor. 

The  libellant  now  demands  wages  for  the  Avhole  voyage,  together 
with  the  expen.scs  of  his  cure. 

There  are  disagreements  in  several  particulars  between  the 
statements  of  the  libel  and  those  of  the  answer,  but  they  do  not  es- 
sentially affect  the  points  upon  which  the  cause  turns,  and  accord- 
ingly no  time  will  be  spent  in  the  consideration  of  them. 

The  questions  in  the  case  are  three: 

"Was  the  libellant  discharged  from  the  ship  at  Maui,  so  as  to 
terminate  the  shipping  contract,  and  exempt  the  vessel  from  all  fur- 
ther liability  in  consequence  of  his  shipment? 

Was  the  condition  contained  in  the  shipping  articles,  limiting  the 
libellant 's  compensation  or  wages  to  the  time  he  was  actually  on 

22 


CONSULAR  CASES 

board  and  capable  of  rendering  the  services  he  contracted  to  perform, 
a  legal  condition  and  obligatory  upon  him  ? 

Is  the  ship  chargeable  with  the  expenses  of  the  libellant's  cure? 
and  if  so,  to  what  extent? 

1.  It  is  incumbent  on  the  claimants  to  set  forth  in  their  answer, 
a  state  of  facts  justifying  the  discharge  of  the  libellant  in  a  foreign 
port,  and  to  support  the  allegations  by  competent  and  sufficient  proofs. 

They  plead  that  the  libellant,  on  March  16,  1846,  fell  from  the 
topsail  yard  of  the  ship  through  want  of  sufficient  care  on  his  part, 
and  was  so  severely  injured  by  the  fall,  and  became  so  sick  in  conse- 
quence of  it,  that  he  was  rendered  unable  to  perform  his  duty  on 
board,  and  was,  at  his  own  request,  and  by  order  of  the  captain,  and 
by  aid  of  the  consular  agent,  placed  in  the  hospital.  That  on  March 
18th,  he  was  dis- (464)  charged  from  the  ship  by  his  own  consent,  and 
by  the  consent  and  authority  of  Giles  Waldo,  the  United  States  consul 
at  that  port,  the  master  of  the  ship  having  produced  to  the  consul  the 
list  of  the  ship's  company,  certified  according  to  law,  and  having 
paid  to  the  consul  the  sum  of  $36,  being  three  months'  wages  to  the 
libellant. 

The  evidence  to  support  this  discharge  is  a  certificate, — repre- 
sented to  be  under  the  consular  seal,  but  the  impression  of  the  seal 
is  too  faint  to  admit  of  its  being  deciphered, — attached  to  the  articles, 
and  expressed  in  these  terms : 

United  States  Consular  Agency, 

Lahaina,  Hawaian  Islands. 

"I,  the  imdersigned  U.  S.  consular  agent,  do  hereby  certify,  that 
George  Stotesburg  has  been  discharged  from  ship  Atlantic  on  account 
of  sickness  and  in  accordance  with  the  laws  of  the  United  States. 

"Given  under  my  hand  and  seal  this  18th  day  of  March,  1846. 

Giles  Waldo, 
U.  S.  Consular  Agent. 

"By  A,  H.  Linigsyez,"  (or  some  other  similar  name,  not  easily 
determined  from  the  signature.) 

On  another  paper  a  memorandum  or  account  is  made  in  this 
form : 

Ship  Atlantic  and  owners  to  U.  S.  Consulate. 

3  months '  wages  to  Stotesburg, $36  00 

Certificate,    2  00 


Lahama,  March  18,  1846." 


$38  00 
Rec'd  payment, 

(Signed  as  above.) 


23 


CONSULAR  CASES 

These  papers  are  all  the  evidence  produced  to  support  the  allega- 
tion of  the  answer,  that  three  months'  wages  had  been  (465)  paid  to 
the  commercial  agent,  and  that  the  discharge  had  been  given  under  the 
authorization  of  the  act  of  congress  of  February  28,  1803.  5  U.  S. 
Stats.  39G. 

The  discharge,  however,  manifestly  was  not  made  in  conformity 
with  the  provisions  of  the  statute;  for  the  cardinal  requisite  to  the 
exercise  of  that  authority  is,  that  application  for  the  discharge  shall 
be  made  by  both  the  master  and  mariner;  and  it  is  not  even  certified 
that  the  consular  agent  acted  on  any  such  application;  on  the  con- 
trary- the  proofs  import  that  the  libellant  was  sent  ashore  by  direction 
of  the  master,  and  imder  expectation  that  he  still  remained  connected 
■\nth  the  vessel  as  if  he  had  continued  in  her.  The  court  cannot  assume 
that  the  assent  of  the  libellant  to  his  discharge  was  given,  merely  upon 
the  fact  of  his  being  left  in  a  hospital  in  his  then  maimed  and  dan- 
gerous condition;  nor  upon  the  assertion  of  the  person  acting  for 
the  consular  agent  that  the  libellant  was  discharged  from  the  ship  in 
accordance  with  the  laws  of  the  United  States.  It  is  unnecessary  to 
inquire,  whether  an  averment  in  such  certificate  that  consent  was 
given  by  the  seaman  and  master  in  the  presence  of  the  consul,  or  was 
proved  to  him,  would  justify  the  discharge  without  other  evidence  of 
the  fact,  because  the  certificate  contains  no  such  allegation.  Indubi- 
tably the  particular  which  gives  authority  to  consuls  to  act  in  this 
behalf  under  the  statute,  must  be  duly  established,  or  his  proceedings 
will  be  a  nullity.  This  is  a  special  power  and  trust  confided  to  con- 
suls and  commercial  agents,  and  must  be  exercised  by  those  officers 
strictly  in  pursuance  of  the  directions  of  the  statute. 

Nor  can  the  payment  of  $36  wages  made  to  the  consul  by  the 
master,  be  accepted  as  a  payment  of  the  three  months'  wages  pre- 
scribed by  the  act.  The  hiring  was  for  a  share  of  the  takings  on  an 
entire  whaling  voyage;  and  the  rate  of  the  lays  could  not,  by  the 
method  of  apportionment  appointed  in  the  articles,  be  applied  with 
any  justness  to  the  period  of  service  which  had  then  elapsed.  The 
vessel  was  on  her  outward  (466)  cruise  to  the  fishing  grounds,  and  it 
would  be  evidently  unjust  to  measure  the  compensation  of  the  libel- 
lant by  lay  shares  out  of  the  chance  takings  on  that  part  of  the 
cruise.  The  takings  of  the  entire  voyage  was  the  basis  upon  which 
the  libellant 's  share  should  be  computed.  Twelve  dollars  per  month 
was  evidently  adopted  as  an  arbitrary  allowance  of  wages.  It  might 
chance  to  be  more  advantageous  to  the  libellant  than  his  lay  of  the 
earnings  of  the  adventure,  apportioning  the  time  he  was  in  the  ship 
with  the  entire  duration  of  the  voyage.  Still,  it  might  be  disproportion- 
ately short  of  his  share.    And  it  certainly  was  not  competent  to  the 

24 


CONSULAR  CASES 

master  and  consular  agent  to  determine  that  matter  without  the  clear 
undersanding  and  concurrence  of  the  libellant.  I  think,  therefore, 
that  there  is  not  in  this  discharge  that  conformity  with  the  require- 
ments of  the  act  of  1803,  which  will  uphold  it  to  protect  the  ship. 
Jay  V.  Almy,  1  Woodb.  &  M.  271/ 

The  act  of  July  20,  1840,  (5  U.  S.  Stats.  394,  C.  48,  §§  5,  6,  9,) 
empowers  consuls  and  consular  agents  abroad,  to  discharge  seamen 
from  their  contracts  or  their  ships,  and  to  exact  the  payment  of  three 
months'  wages,  or  even  more,  or  to  dispense  with  it  as  in  their  judg- 
ment they  may  think  expedient.  This  power  can  be  exercised  but  in 
two  cases, — upon  the  application  of  both  the  master  and  the  mariner, 
or  upon  that  of  the  mariner  alone.  The  master  can  act  in  the 
matter  only  jointly  with  the  mariner.  And  it  is  not  enough  for 
the  consul  to  certify  that  he  gave  the  discharge  "lawfully,"  or  that 
he  gave  it  "in  accordance  with  the  laws  of  the  United  States."  It 
must  be  made  to  appear  upon  what  grounds  he  proceeded.  The  court 
cannot  intend  that  it  was  on  the  joint  request  of  the  master  and  sea- 
man; nor  that  it  was  on  the  sole  application  of  the  latter,  nor 
even  that  one  or  other  ingredient  of  fact  actually  existed.  The  power 
imparted  to  consuls  is  limited  and  specific  in  character,  not  appertain- 
ing to  him  virtute  officii,  (467)  but  conferred  by  a  statutory  provi- 
sion ;  and  the  law  raises  no  presumption  or  intendment  in  support  of 
his  doings,  until  it  is  shown  that  his  jurisdiction  attached  to  the  sub- 
ject,— that  a  case  had  occurred  falling  within  the  scope  of  his  powers. 
The  rule  is  coeval  with  the  existence  of  statutory  or  limited  tribunals 
or  officers,  that  their  doings  must  be  made  to  appear  to  be  within 
their  authority,  and  that  nothing  can  be  supplied  in  support  of  their 
jurisdiction  by  intendment.  1  Co.  Inst.  117 ;  2  Co.  R.  16 ;  1  Lilly,  Abr. 
371;  1  Levinz,  104;  Powers  v.  The  People,  4  Johns.  292;  Atkins  v. 
Brewer,  3  Cow.  206 ;  Grignon  v.  Astor,  2  How.  319 ;  Bennett  v.  Bush, 
1  Den.  141.  Nor  is  it  sufficient  for  the  officer  to  aver  ever  so  positive- 
ly his  jurisdiction.  He  must  set  forth  the  facts  necessary  to  confer 
it,  and  those  jurisdictional  facts  must  be  established  by  proof.  The 
People  V.  Koebar,  7  Hill,  39,  and  cases  cited. 

I  do  not  discuss  the  question  raised  respecting  the  sufficiency  of 
the  proof,  that  Giles  "Waldo  was  the  consular  agent  of  the  United 
States  at  Lahaina,  or  that  the  gentleman  who  has  subscribed  the  act 
for  him,  was  his  legally  authorized  substitute.  Admitting  that  the 
seal  of  the  consulate  imports  a  legal  authority  in  the  person  using  it 
to  do  all  official  acts  appertaining  to  the  office,  still  the  case  calls  for 
the  remark,  that  the  papers  should  present  a  distinct  impression  of  a 
seal  so  that  it  may  be  identified  and  discriminated.    The  paper  before 

*  Compare  Hutchinson  v.  Coombs,  Ware,  65;  also  Minor  v.  Harbeck,  post. 

25 


CONSULAR  CASES 

the  court  does  indeed  bear  a  faint  similitude  of  a  seal,  but  neither  vig- 
nette nor  motto  is  distinguishable;  and  the  vague  flourish  employed 
for  a  signature,  affords  no  means  by  which  the  authentication  of  the 
discharge  can  be  verified.^ 

ATJBREY,  IN  RE,  (1885,  U.  S.) 

26  Fed.  Eop.  S4S. 

Pardee,  Circuit  Court. 

On  application  for  a  writ  of  hahcas  corpus. 

PARDEE,  J :  The  relators  are  held  by  the  keeper  of  the  parish 
prison  under  a  commitment  from  one  of  the  commissioners  of  this 
court,  purporting  to  be  in  compliance  with  section  728,  Rev.  St.,  and 
based  (849)  on  a  petition  of  her  Britanic  majesty's  consul,  alleging 
that  by  virtue  of  the  authority  conferred  upon  him  by  law  as  such 
consul,  to  sit  as  judge  in  a  controversy  between  a  seaman  of  the  crew 
of  a  British  ship  and  the  captain  and  others  of  the  crew  thereof,  he 
has  made  a  decree  that  one  John  "W.  Dakin,  Frank  Aubrey,  and  Al- 
fred G.  Bardo,  all  of  the  British  ship  Lancefield,  be  sent  to  the  United 
Kingdom  for  trial  for  an  offense  committed  in  the  said  United  King- 
dom, and  which  cannot  be  tried  by  any  court  of  the  United  States 
or  of  the  state  of  Louisiana;  and  concluding  with  a  prayer  that  the 
aforesaid  Dakin,  Aubrey,  and  Bardo  may  be  imprisoned  in  the  prison 
of  this  parish,  and  held  there  until  the  aforesaid  decree  can  be  put 
in  force,  as  is  provided  by  section  728  of  the  Revised  Statutes. 

It  is  made  to  appear  on  the  argument  that  the  alleged  offense  was 
assault  and  battery  committed  on  board  a  British  ship  in  the  port 
of  Cardiff.  It  is  probable  that  the  commitment,  and  the  petition  on 
which  it  is  based,  are  technically  defective,  the  petition  particularly, 
in  not  being  more  specific,  but  as  new  process  could  be  at  once  issued, 
and  the  parties  rearrested,  and  as  the  argument  has  been  over  the 
merits  of  the  case  as  though  the  commitment  and  petition  were  com- 
plete, we  will  consider  the  case  on  its  entire  merits. 

The  relator's  counsel  contend  that  whether  the  offense  alleged 
again.st  relators  was  committed  in  or  out  of  the  United  Kingdom,  on 
the  high  seas  or  in  port,  the  decree  rendered  by  the  consul  was  not 
made  or  rendered  by  him  by  virtue  of  an  authority  conferred  on  hira 
by  British  law  as  such  consul,  to  sit  as  judge  or  arbitrator  in  such  dif- 
ferences as  arise  between  captains  and  crews  of  British  vessels,  and 
they  rely  upon  the  British  shipping  acts. 

^  That  a  regular  and  valid  consular  discharge,  properly  certified,  is  con- 
clusive on  all  points  duly  passed  upon  by  the  consul,  unless  his  conduct  be  proved 
corrupt  or  fraudulent,  see  Lamb  v.  Briard,  ante,  367;  Tingle  v.  Tucker,  decided 
April,  1849,  reported  post,  in  its  order. 

26 


CONSULAR  CASES 

In  passing  upon  the  question,  it  is  immaterial  to  consider 
whether  the  naval  court  provided  for  by  the  British  shipping  act  vf&s 
the  proper  tribunal  to  try  the  relators  for  their  alleged  offense; 
whether  extradition  could  have  been  resorted  to,  or  whether  the  al- 
leged consular  action  was  proper  and  discreet,  under  the  real  facts 
in  the  case.  The  offenses  within  consular  jurisdiction,  under  the 
British  merchant  shipping  acts,  are  offenses  committed  out  of  the 
United  Kingdom.  But  it  appears  that  the  said  acts  only  include  or 
embrace  the  statute  law  relating  to  British  merchant  ships  and  sea- 
men, and  that  the  common  law  of  Great  Britain,  except  when  altered 
by  statute,  remains  still  in  force  for  the  government  of  consuls.  See 
paragraph  1,  Book  of  Instructions,  infra.  The  consular  jurisdiction 
in  relation  to  the  offenders  against  British  law  on  board  British  ships, 
under  both  statute  law  and  common  law,  has  been  proved  in  this  case 
by  the  evidence  of  the  consul,  himself  an  English  barrister  at  law,  to 
be  as  found  in  a  book  entitled  "Instructions  to  Consuls  Relating  to 
Matters  Affecting  the  British  Mercantile  Marine,"  prepared  by  the 
board  of  trade,  and  approved  by  H.  M.,  secretary  of  state  for  foreign 
affairs  of  date  1883.  Paragraph  189  of  said  instructions  reads  as 
follows : 

(850)  "Upon  a  complaint  being  made  to  the  consul  of  any  offense 
against  British  law  having  been  committed  on  the  high  seas,  or  if, 
without  complaint,  he  becomes  aware  of  any  serious  offense  having 
been  committed  on  board  of  a  British  ship,  he  may  inquire  into  the 
case  upon  oath,  and  may  summon  Avitnesses  before  him  for  that  pur- 
pose, and  if  there  is  evidence  which,  in  the  opinion  of  the  consul,  is 
sufficient  to  substantiate  the  charge,  he  may  send  the  offender  to  some 
place  in  the  British  dominion  at  which  he  can  be  tried, ' '  etc. 

The  high  authority  issuing  and  indorsing  the  said  book  of  in- 
structions should  remove  any  doubt  as  to  whether  it  is  in  accordance 
with  British  law.  See  Dainese  v.  Hale,  91  U.  S.  13 ;  and,  under  the 
paragraph  cited,  the  jurisdiction  of  the  consul  in  the  case  in  hand 
seems  to  be  clear.  At  all  events,  when  the  British  consul  in  a  mat- 
ter of  discipline,  is  dealing  with  British  subjects  on  board  of  a  Brit- 
ish ship,  we  are  not  called  upon  to  look  for  his  jurisdiction  further 
than  the  instructions  issued  by  the  British  foreign  office. 

Conceding,  therefore,  the  jurisdiction  of  the  consul  under  British 
law,  it  remains  to  determine  whether  section  728,  Rev.  St.,  warrants 
the  commitment  issued  by  the  commissioner  in  the  present  case. 
The  statute  was  originally  passed  to  enable  our  government  to  carry 
out  its  treaty  stipulations  with  Prussia  and  other  countries.  See  9 
St.  at  Large,  78.  In  the  revision  of  the  statutes  the  preamble  is 
omitted,  and  the  application  of  the  statute  seems  to  be  enlarged  so  as 

27 


CONSULAR  CASES 

to  embrace  the  consular  agents  of  all  nations;  and  it  does  embrace 
all  consular  agents  ^vhose  governments  give  them  jurisdiction,  unless 
the  statute  is  so  construed  as  to  hold  that  the  authority  conferred 
upon  such  consular  agents  to  sit  as  judge  or  arbitrator,  etc.,  men- 
tioned in  the  statute,  refers  to  and  is  limited  to  authority  conferred 
by  the  consent  of  the  United  States.  Such  a  construction  is  strength- 
ened by  the  original  preamble  to  the  statute,  and  by  the  fact  that 
sections  4079,  4080,  4081,  Rev.  St.,  (which  precisely  provide,  under 
limitations  and  restrictions  looking  to  the  protection  of  citizens  of 
the  United  States,  for  enforcing  the  judgments,  orders,  and  decrees 
of  consular  officers,)  are  limited,  in  terras,  to  such  officers  of  foreign 
nations  as  are  entitled  thereto,  under  treaty  stipulation  with  the 
United  States,  and  then  only  when  such  foreign  country  gives  the 
same  privilege,  to  consular  officers  of  the  United  States,  the  latter 
fact  to  be  ascertained  and  proclaimed  by  the  president.  Unless  such 
claimed  construction  shall  be  given  as  to  the  authority  necessary  under 
section  728,  it  would  render  sections  4079,  4080,  and  4081  practically 
nugatory,  because  section  728  in  itself  is  so  broad  that  all  action  in 
enforcing  decrees  of  consular  officers  could  be  had  thereunder,  and 
the  restrictions  and  limitations  provided  for  in  other  sections  of  the 
statute  avoided,  and  besides,  foreign  nations  with  whom  we  have  no 
treaty  stipulations  would  stand  on  as  good,  if  not  on  a  better,  footing 
than  those  nations  to  which  the  United  States  is  bound  by  treaties 
of  reciprocity  and  commerce.  The  rule  that  the  several  sections  of 
the  statutes  should  be  construed  together,  and  harmonized,  if  possi- 
(851)  ble,  also  leads  to  the  suggested  construction  of  section  728,  and 
we  are  inclined  to  adopt  it  in  this  case. 

The  facts  of  this  case,  however,  as  they  are  admitted,  suggest  a 
doubt  whether  either  or  any  of  the  sections  of  the  statute  referred  to 
authorize  the  action  of  the  commissioner,  and  justify  the  commit- 
ment issued  by  him.  The  case,  as  submitted,  does  not  show  any  dif- 
ference between  the  captain  and  the  crew  of  any  vessel,  although  it  is 
allegod  as  the  source  of  the  consul's  jurisdiction;  but  rather,  it  shows 
that  the  relators  are  charged  with  an  offense  against  the  laws  of  Great 
Britain  committed  in  the  United  Kingdom;  and  this  goes  still  further 
to  show  that  the  construction  claimed  for  section  728  is  too  broad, 
because  under  such  construction,  in  some  cases,  it  may  be  made  a 
substitute  for  our  extradition  laws,  and  permit  the  extradition  of  al- 
leged fugitives  from  justice  without  the  performance  of  such  condi- 
tions as  congress  has  seen  fit  generally  to  guard  that  important  mat- 
ter.   See  section  5270.  Rev.  St.  et  seq. 

As  a  matter  of  law,  foreign  consuls  have  no  jurisdiction  within  the 
territory  of  the  United  States  except  by  force  of  treaty  stipulations. 

28 


CONSULAR  CASES 

See  Wheat.  Int.  Law,  217.  The  judicial  power  of  a  consul  depends 
upon  the  treaties  between  the  nations  concerned  and  the  laws  of  the 
nation  the  consul  represents.  Dainese  v.  Hale,  91  U.  S.  13.  See  The 
Elwine  Kreplin,  9  Blatchf.  438.  Consular  jurisdiction  depends  on 
the  general  law  of  nations,  subsisting  treaties  between  the  two  govern- 
ments affected  by  it,  and  upon  the  obligatory  force  and  activity  of  the 
rule  of  reciprocity.     2  Op.  Atty.  Gen.  378. 

We  conclude,  therefore,  that  neither  under  international  law, 
nor  under  the  statute  law  of  the  United  States,  has  a  consular  officer 
of  a  foreign  government  a  right  to  sit  as  judge  or  arbitrator  within 
our  territory,  and  render  decrees  or  orders  affecting  personal  liberty, 
which  orders  or  decrees  the  courts  of  the  United  States  are  author- 
ized or  required  to  enforce,  unless  the  consent  of  the  United  States  to 
such  jurisdiction  has  been  given,  either  by  express  statute  or  treaty 
stipulation. 

So  far  as  the  claim  is  made  that  the  relators  should  be  held  in  a 
spirit  of  comity  and  reciprocity,  we  can  only  say  that  the  comity  and 
reciprocity  to  be  extended  to  representatives  of  foreign  governments 
depends  upon  congress,  and  is  not  lodged  within  the  judiciary.  See 
2  Op.  Atty.  Gen.  378,  citing  The  Nereide,  9  Cranch,  389. 

The  writ  of  habeas  corpus  should  be  made  absolute,  and  the  rela- 
tors discharged,  and  it  is  so  ordered. 

After  the  reading  of  the  decision,  Mr,  Florence,  representing  the 
British  consul,  asked  the  court  to  detain  the  prisoners  for  a  brief 
period  until  he  could  consult  the  consul  as  to  whether  an  appeal  would 
be  taken.  The  request  was  granted,  but  no  one  appearing  within  a 
reasonable  time,  the  men  were  set  at  liberty. 

BOARMAN,  J.,  concurs. 

AYCINENA,  IN  THE  MATTER  OF,  (1848,  U.  S.) 

1  Sand.  690. 

By  the  Court,  New  York  City  Superior  Court. 

BY  THE  COURT :  The  objection  to  the  form  of  the  statement 
presented  to  us,  is  untenable.  The  form  is  of  no  consequence.  The 
fact  is  alleged,  and  is  undisputed,  that  the  party  is  the  consul  general 
of  the  republic  of  Guatemala;  and  that  is  sufficient  to  call  upon  the 
judge,  to  determine  whether  he  will  or  will  not  further  entertain  the 
proceeding. 

The  question  is,  whether  under  the  judiciary  act  of  congress,  this 
attachment  can  be  sustained.  By  that  act,  the  jurisdiction  of  all 
suits  against  consuls,  is  vested  exclusively  in  the  district  court.  Is 
this  a  suit,  within  the  meaning  of  the  judiciary  act  1 

Having  reference  to  the  provision  in  the   constitution   of  the 

29 


CONSULAR  CASES 

United  States,  and  its  objects,  together  with  the  good  sense  of  the 
thing,  we  are  constrained  to  say  that  this  is  a  suit,  within  the  act  of 
congress.  One  object  was  to  prevent  the  harassing  of  foreign  min- 
isters and  consuls  in  the  state  courts.  The  foundation  of  this  pro- 
ceeding by  attachment  is  a  debt,  and  it  seeks  the  recovery  of  the  debt 
from  this  consul,  through  the  coercion  of  a  state  tribunal.  It  is  there- 
fore a  suit,  in  the  sense  in  which  that  word  is  used  in  the  judiciary 
act,  and  the  attachment  must  be  discharged. 

We  are  asked  to  award  costs  to  the  consul,  but  we  find  no  author- 
ity for  giving  costs.  Indeed,  there  is  no  ground  for  it,  as  it  is  not 
shoTMi  that  the  attaching  creditor  knew  of  the  privilege  now  inter- 
posed. 

Attachment  discharged. 

AZOGUE  V.  UNITED  STATES,  (1891,  U.  S.) 

26  Ct.  a.  430. 

Davis,  Court  of  Claims. 

(432)  DAVIS,  J.,  delivered  the  opinion  of  the  court: 

Plaintiff,  a  resident  of  Philadelphia,  was  employed  by  William 
Reed  Lewis,  then  recently  appointed  consul  at  Tangier,  *'as  an  in- 
terpreter and  general  body  ser^^ant  at  the  L^nited  States  consulate  at 
Tangier,  at  a  salary  of  $30  (United  States  money)  per  month,  be- 
ginning February  19,  1887.  It  is  agreed  that  after  the  expiration  of 
ten  months  from  February  19,  1887,  the  salary  is  to  be  decreased  to 
$20  per  month. 

It  was  further  understood  and  agreed  that  Azogue  should  "pay 
his  o^vn  board  and  traveling  expenses." 

In  1888  or  1889  (the  testimony  is  conflicting  as  to  the  date)  a 
difference  arose  between  the  consul  and  plaintiff,  which  resulted  in 
severing  their  relations. 

This  action  is  now  brought  against  the  United  States  for  payment 
of  plaintiff's  wages  from  April  1,  1888,  to  August  31,  1889,  when,  ac- 
cording to  his  theory  of  the  case,  the  separation  took  place.  We 
mu.st  first  discover  whether  the  United  States  were  a  party  to  any 
contract  with  plaintiff.  The  agreement  signed  by  the  consul  and 
plaintiff  negatives  such  an  inference,  as  it  shows  that  "William  Reed 
Lewis,  a  citizen  of  the  state  of  Pennsylvania,  U.  S.  A.,"  not  William 
Reed  Lewis  as  consul,  agreed  to  employ  and  pay  the  plaintiff,  describ- 
ed as  "Ramon  Azogue,  a  citizen  of  the  United  States,"  who  upon  his 
part  agreed  "to  perform  all  duties  assigned  to  him  to  the  best  of  his 
ability;"  that  is,  duties  assigned  to  him  "by  the  party  of  the  first 

30 


CONSULAR  CASES 

part,"  who  was  the  aforesaid  "citizen  of  the  State  of  Pennsylvania, 
U.  S.  A."  Further,  the  contract  was  to  be  "terminated  at  any  time 
by  either  party  on  thirty  days'  notice."  The  contract,  on  its  face, 
was  between  private  individuals,  and  it  provided  for  two  kinds  of 
service,  one  of  which  is  not  compensated  by  the  government,  to  wit, 
that  of  a  "general  body  servant;"  and  it  was  terminable  upon  notice, 
which  the  government  never  stipulates  to  give  to  a  subordinate  civil 
employe,  and  which  it  does  not  require  from  him;  nor  was  a  govern- 
ment officer  to  terminate  it,  but  to  Lewis,  personally,  was  reserved 
that  power;  it  was  not  given  to  the  consul,  who  might  be  another  in- 
dividual, or  to  the  vice  consul  in  the  consul's  absence,  much  less  was 
it  reserved  to  a  superior  officer.  There  is  nothing  in  the  agreement 
showing  an  intention  or  desire  to  bind  the  United  States;  there  is  in 
it  every  mark  of  a  purely  private  and  personal  transaction.  (433) 

The  employment  of  Azogue  as  interpreter  in  the  consulate  at 
Tangier  was  not  reported  to  the  department  of  state  by  the  consul 
otherwise  than  by  including  his  name  in  his  quarterly  accounts  and  in 
the  list  of  employes  of  the  consulate.  The  department  of  state  neither 
authorized  nor  forbade,  neither  approved  nor  disapproved,  the  selec- 
tion; it  simply  assigned  to  the  consul  a  certain  sum  of  money  with 
which  he  could  pay  an  interpreter — any  interpreter  he  chose  to 
employ. 

Section  26  of  the  Consular  Regulations  of  1888  provides  for  sal- 
aried interpreters  at  certain  posts  (see  Rev.  Stat.,  1678  to  1680,  1692, 
1693,  1740),  the  expenditure  required  to  be  made  under  the  direction 
of  the  secretary  of  state,  and  Tangiers  is  not  one  of  those  posts.  This 
section  recognizes  as  a  fact  that  some  of  the  interpreters  are  ap- 
pointed directly  by  the  president  and  that  those  at  the  more  im- 
portant posts  receive  a  commission.  The  plaintiff  received  no  ap- 
pointment from  any  officer  of  the  government  in  Washington,  and  his 
only  commission  was  the  personal  agreement  we  have  already  cited, 
an  agreement  which  it  is  safe  to  assume  would  not  have  received 
the  approval  of  the  department  of  state  had  it  been  brought  to  the 
attention  of  that  department.  The  same  section  of  the  regulations 
recognizes  that  the  duty  of  nominating  an  interpreter  is  intrusted  to 
the  head  of  the  consulate,  and  Azogue  was  never  nominated  as  in- 
terpreter to  the  department  of  state. 

Section  42  of  the  regulation  and  sections  1756  and  1757  (23  Stat. 
L.,  22)  of  the  Revised  Statutes  require  the  interpreter  to  take  the 
oath  of  office.  It  does  not  appear  that  plaintiff  took  that  oath.  (See 
also  §§  43,  532,  regulations;  see,  to  the  same  effect,  regulations,  1881, 
§§  5,  22,  37,  38,  39,  66,  67,  114,  425.) 

The  regulations  of  1881  were  in  force  when  the  contract  in  suit 

31 


CONSULAR  CASES 

was  made.     They  contained  substantially  the  same  provisions  as  the 
regulations  of  1888. 

The  only  statutory  recognition  of  an  interpreter  at  Tangiers  is 
contained  in  appropriation  acts.  Thus,  in  the  diplomatic  and  con- 
sular appropriation  act,  approved  July,  1886,  under  the  head  of 
"contingent  expenses,  foreign  missions"  (although  the  post  at  Tan- 
giers is  not  a  mission,  but  a  consulate)  appears  this  clause: 

"For  the  purpose  of  enabling  the  president  to  provide,  at  the 
public  expense, ...  for  rent,  postage,  telegrams,  furniture,  messenger 
ser\'ice,  clerk  hire,  compensation  of  cavasses,  (434)  guards,  drago- 
mans, and  porters,  including  compensation  of  interpreter,  guards 
and  Arabic  clerk  at  the  consulate  at  Tangiers,"  etc.  (24  Stat.  L.,  108; 
also  24  Stat.  L.,  480;  25  Stat.  L.,  248;  Stat.  L.,  698.) 

The  same  provision  occurs  in  subsequent  statutes,  the  only  dif- 
ference being  that  in  two  of  the  acts  the  word  "janitors"  appears 
before  the  words  ' '  and  porters. ' '  The  department  of  state  thereupon 
allowed  the  consulate  at  Tangiers  the  sum  of  $800  per  annum  (dur- 
ing the  period  covered  by  this  action)  "for  interpreter,  guards,  and 
Arabic  clerk,"  out  of  which  the  interpreter  was  paid  at  the  rate  of 
$280  a  year. 

Therefore,  in  the  appropriation  acts  and  by  the  department  of 
state,  the  interpreter  was  classed  among  the  subordinate  employes  of 
the  consulate  whose  tenure  depended  upon  the  will  of  the  consul.  He 
fell  into  the  same  category  as  the  clerks,  guards,  cavasses,  janitors,  and 
porters,  who  are  employed  and  discharged  by  the  consul  as  he  may 
find  them  needful  to  the  consulate  or  satisfactory  to  him  in  service. 

The  supervision  exercised  by  the  department  of  state  over  this 
class  of  employes  is  limited  to  the  allotment  of  the  proportionate  share 
of  the  total  appropriation  for  contingent  expenses,  to  care  that  the 
allotment  is  properly  expended,  and  it  holds  the  consul  responsible 
for  the  conduct  of  his  consulate — that  is,  for  the  acts  of  his  subordi- 
nates. The  secretary  of  state  would  not  and  could  not,  in  practice, 
indicate  the  individuals  to  be  employed  as  clerks,  janitors,  cavasses, 
or  porters  in  all  the  consulates  entitled  to  such  service. 

The  small  sum  allowed  the  consulate  at  Tangiers  would  not  be 
alone  sufficient  to  support  an  interpreter,  and  it  must  be  assumed  that 
the  department  contemplated  either  that  he  should  be  allowed  to 
engage  in  business  under  the  exception  provided  for  in  section  425 
of  the  regulations  of  1881,  and  the  department  gave  no  such  author- 
ity, or,  what  is  more  likely,  that  the  consul  should  not  employ  continu- 
ously an  interpreter,  but  only  from  time  to  time,  as  the  services 
might  become  necessary,  when  payment  was  to  be  made  for  the  time 
when  the  interpreter  was  actually  employed. 

32 


CONSULAR  CASES 

The  consular  regulations  (§§  28,  29,  and  484,  of  1888;  see  also 
regulations  1881,  §§  24,  25,  and  70)  leave  the  appointment  of  office 
clerks  to  the  consul's  discretion,  with  a  reservation  to  the  department 
in  special  cases ;  the  other  classes  of  subordinates  (435)  are  not  men- 
tioned in  the  regulations,  and  their  employment,  therefore,  rests  with 
the  head  of  the  consulate  in  the  absence  of  action  by  the  department. 

We  conclude  that  the  agreement  between  Azogue  and  Lewis  was 
a  contract  between  individuals,  to  which  the  United  States  w^ere  not 
a  party. 

There  is,  however,  another  difficulty  in  plaintiff's  way.  His  con- 
tract was  for  double  service,  for  which  he  was  to  be  paid  at  first  $30 
a  month,  later  $20  a  month,  he  to  pay  his  own  board  and  traveling  ex- 
penses ;  the  services  to  be  rendered  for  this  emolument  were  first  those 
of  a  body  servant  (without  board  or  traveling  expenses),  for  which 
the  United  States  never  pay,  and  second  those  of  interpreter.  The 
court  is  quite  unable  to  determine  (even  if  plaintiff's  contention  as  to 
the  law  be  correct)  what  proportion  of  the  monthly  allowance  of  $30 
or  $20  should  be  given  for  the  one  service  and  what  for  the  other; 
and  as  he  contracted  for  the  two  inconsistent  services,  he  can  not  re- 
cover the  total  ($280)  allowed  by  the  department  to  the  consul  for 
an  interpreter,  without  showing,  which  he  has  not  done  here,  that 
his  agreement  with  that  officer  contemplated  that  this  sum  was  to  be 
paid  for  his  services  as  an  interpreter  alone. 

Petition   dismissed. 

BAIZ,  IN  EE,  (1890,  U.  S.— Honduras) 
135  U.  S.  403;   10  Sup.  Ct.  Eep.  854. 
Fuller,  Supreme  Court. 

On  petition  for  a  writ  of  prohibition  or  mandamus. 

On  the  29th  day  of  June,  1889,  an  action  was  commenced  by  one 
John  Henry  Hollander  in  the  district  court  of  the  United  States  for 
the  southern  district  of  New  York  against  Jacob  Baiz,  (see  41  Fed. 
Rep.  732,)  to  recover  damages  for  the  publication  of  an  alleged  libel 
upon  the  plaintiff,  and  a  summons  was  served  upon  him  on  the  2d 
day  of  July  of  that  year.  The  defendant  entered  a  general  appear- 
ance in  the  action,  which  was  filed  July  17,  1889.  On  the  25th  day 
of  September,  1889,  the  defendant  verified  his  answer,  which  con- 
tained a  plea  to  the  jurisdiction  of  the  district  court  in  the  follow- 
ing language:  *'The  defendant  alleges  that  he  is  now,  and  ever  since 
the  month  of  Jul}'-,  1887,  has  been,  the  consul  general  of  the  republic 
of  Guatemala  at  the  city  of  New  York,  and  that  in  or  about  the 
month  of  May,  1889,  he  received  from  the  republic  of  Guatemala  a 

33 


CONSULAR  CASES 

duly-authenticated  copy  of  a  decree  in  the  English  language,  dated 
at  the  national  palace  in  Guatemala,  May  14,  1889,  with  instructions 
in  writing  from  said  government  to  publish  the  same  in  the  news- 
papers of  the  United  States,  and  which  said  decree  had  previously 
been  published  in  the  official  Gazette,  or  newspaper,  published  in  said 
republic,  and  that  pursuant  to  such  instructions,  which  were  sent  to 
him  both  by  letter  and  by  cable,  and  not  otherwise,  he  did,  on  or 
about  the  9th  day  of  June,  1889,  send  to  the  managers  of  the  Asso- 
ciated Press,  in  the  city  of  New  York,  said  authenticated  copy  of 
said  decree,  stating  that  it  was  possible  that  said  managers  would  find 
it  of  sufficient  interest  to  publish.  That  prior  to  the  16th  day  of 
Januarj',  1889,  one  Senor  Don  Francisco  Lainfiesta  was  envoy  ex- 
traordinary and  minister  plenipotentiary  of  the  republic  of  Guatemala 
in  the  United  States,  and  on  or  about  that  day  he  departed  from  the 
United  States  upon  a  temporary  leave  of  absence,  duly  granted  to 
him,  and  that  from  on  or  about  that  day,  down  to  on  or  about  the  10th 
day  of  July,  1889,  this  defendant  became  and  was  the  acting  minister 
and  sole  representative  of  the  said  republic  of  Guatemala  in  the  place, 
and  during  the  absence,  of  the  said  envoy  extraordinary  and  minister 
plenipotentiary,  and  was  exclusively  in  charge  of  the  diplomatic  af- 
fairs of  the  said  republic  in  the  United  States.  And  by  reason  of  the 
facts  herein  alleged  this  defendant  claims  that  this  court  has  no 
jurisdiction  of  this  action,  and  that,  if  any  jurisdiction  for  said  act  in 
fact  exists  in  any  court,  it  is  vested  solely  in  the  supreme  court  of 
the  United  States,  pursuant  to  the  provisions  of  the  constitution  and 
the  statutes  of  the  United  States  in  such  case  made  and  provided." 
In  January,  1890,  a  motion  was  made  '  *  for  an  order  setting  aside  the 
ser\'ice  of  the  summons  and  all  subsequent  proceedings  in  the  action, 
and  that  the  court  dismiss  the  same,  on  the  ground  that  it  has  no 
jurisdiction  of  this  action,  and  had  no  jurisdiction  over  the  defendant 
at  the  time  of  the  commencement  thereof."  This  motion  was  based 
on  the  defendant's  affidavit,  and  upon  proofs  consisting  of  original 
WTittcn  communications  from  the  state  department  to  Baiz,  and  of 
duly-certified  copies  of  papers  on  file  in  said  department;  and  was 
resisted  by  the  plaintiff  on  certain  affidavits,  and  an  original  letter 
from  the  department.  On  the  17th  day  of  February  the  motion  was 
denied,  and  an  application  was  then  made  to  this  court  for  a  rule  to 
show  cause  why  a  writ  of  prohibition  should  not  issue  to  the  judge 
of  the  district  court,  prohibiting  him  from  proceeding  further  in 
said  action ;  or,  if  a  wTit  of  x^rohibition  could  not  issue,  then  for  a 
rule  to  show  cause  why  a  writ  of  mandamus  should  not  issue,  com- 
manding the  judge  to  enter  an  order  dismissing  the  cause,  for  the 
reason  that  the  jurisdiction  of  said  action  existed  solely  in  the  su- 

34 


CONSULAR  CASES 

preme  court,  under  the  constitution  and  laws  of  the  United  States; 
or  for  such  other  and  further  relief  as  might  be  proper  in  the  prem- 
ises. The  application  was  made  upon  the  petition  of  the  defendant 
in  the  action  in  the  district  court,  and  annexed  to  the  petition  and 
forming  a  part  of  it  was  a  certified  copy  of  the  entire  record  in  the  dis- 
trict court,  including  every  paper  used  upon  the  motion,  and  the 
opinion  of  the  court.  A  rule  having  been  issued,  the  judge  of  the 
district  court  returned  thereto  that  the  motion  was  denied  upon  the 
facts  and  considerations  appearing  in  the  record  and  opinion,  copies 
of  which  were  attached  to  the  petition,  and  to  the  order  to  show  cause, 
and  submitted  to  this  court  whether  the  district  court  should  take 
further  cognizance  of  the  said  cause,  or  should  dismiss  the  same. 

It  appeared  before  the  district  judge,  as  it  does  here,  that  Mr. 
Baiz  was  and  is  a  citizen  of  the  United  States,  and  a  resident  of  the 
city  of  New  York,  and  that  he  has  been  since  1887  consul  general  of 
Guatemala;  that  Senor  Lainfiesta  was,  on  the  16th  day  of  January, 
1889,  the  minister  of  Guatemala,  of  Salvador,  and  of  Honduras,  in 
the  United  States,  and  that  on  that  day  Senor  Lainfiesta  addressed 
a  note  to  the  secretary  of  state,  advising  him  that  he  was  compelled  to 
go  to  Guatemala  for  a  short  time,  and  saying:  "Meanwhile  I  beg 
your  excellency  to  please  allow  that  the  consul  general  of  Guatemala 
and  Honduras  in  New  York,  Mr.  Jacob  Baiz,  should  communicate  to 
the  office  of  the  secretary  of  state  any  matter  whatever  relating  to 
the  peace  of  Central  America  that  should  without  delay  be  presented 
to  the  knowledge  of  your  excellency."  The  secretary  of  state,  ac- 
cordingly, on  the  24th  day  of  January,  informed  Senor  Baiz,  *  *  consul 
general  of  Guatemala  and  Honduras, ' '  that  the  note  of  Minister  Lain- 
fiesta had  been  received,  and  that  he  would  "have  pleasure  in  re- 
ceiving any  communication,  in  relation  to  Central  America,  of  which 
you  may  be  made  the  channel,  as  intimated  by  Senor  Lainfiesta."  On 
the  6th  of  March,  1889,  Mr.  Blaine  having  been  appointed  secretary  of 
state,  information  of  that  fact  was  communicated  by  him  to  "Senor 
Don  Jacob  Baiz,  in  charge  of  the  legations  of  Guatemala,  Salvador, 
and  Hunduras,"  the  receipt  of  which  was  acknowledged  by  the  lat- 
ter under  date  of  March  7th,  the  note  of  reply  being  signed,  "Jacob 
Baiz,  Consul  General."  April  1st,  the  secretary  of  state  addressed 
a  eonnnunication  to  "Senor  Don  Jacob  Baiz,  in  charge  of  the  busi- 
ness of  the  legations  of  Guatemala,  Salvador,  and  Honduras,"  inform- 
ing him  of  the  appointment  of  Mr.  Mizner  as  envoy  extraordinary  and 
minister  plenipotentiary  of  the  United  States  to  the  republics  of 
Guatemala,  Salvador,  and  Honduras,  and  asking  him  to  "kindly 
apprise  the  governments  of  Guatemala,  Salvador,  and  Honduras"  of 
the  appointment.    In  the  official  circular  issued  by  the  department  of 

35 


CONSULAR  CASES 

state,  "corrected  to  June  13,  1889,"  concerning  the  "foreign  lega- 
tions in  the  United  States,"  under  the  heads  of  Guatemala,  Salvador, 
and  Honduras,  mention  is  made  of  the  absence  of  Mr.  Lainfiesta,  and 
a  foot-note  is  referred  to  which  reads  "Jacob  Baiz,  consul  general,  in 
charge  of  business  of  legation.  New  York  city."  That  circular  ^'hows 
that  Kussia,  Austria,  and  Corea  were  represented  by  ministers  who 
were  absent,  and  had  charges  d'  affaires  ad  interim,  whose  names  are 
severally  given,  described  as  such,  and  the  dates  of  their  presentation. 
Brazil  and  Venezuela  had  no  ministers,  but  were  represented  by  a 
cJiargt  d'  affaires  or  a  charge  d'  affaires  ad  interim,  the  name  of  the 
incumbent  and  the  date  of  his  presentation  being  given  in  each  of 
these  instances.  Portugal  had  no  minister,  and  the  name  appears  of 
"Baron  d'  Ahneirim,  consul,  and  acting  consul  general,  in  charge  of 
business  of  legation,"  and  the  fact  and  date  of  his  presentation. 
Consul  General  Baiz  is  alone  referred  to  in  a  footnote,  and  is  not 
shown  to  have  been  presented.  Senor  Lainfiesta  did  not  return  as 
minister,  and  on  or  about  the  10th  day  of  July,  1889,  Dr.  Fernando 
Cruz  arrived  in  this  country,  and  w^as  presented  by  the  secretary  of 
state  to  the  president  as  the  envoy  extraordinary  and  minister  pleni- 
potentiary of  the  republic  of  Guatemala  to  the  United  States. 

]\Ir,  Baiz  answered  in  the  action  brought  by  Plollander,  Septem- 
ber 25,  1889.  On  the  3d  of  October,  1889,  counsel  for  the  plaintiff 
addressed  to  the  state  department  a  letter  in  which  he  inquired  who 
was  the  minister  of  the  state  of  Guatemala  from  January  to  August, 
1889;  and  received  an  answer  under  date  of  October  4,  1889,  signed 
by  the  second  assistant  secretary  of  state,  as  follows :  "I  have  to  ac- 
knowledge the  receipt  of  your  letter  of  the  3d  inst.,  and  to  say  in 
reply  that  Senor  Fernando  Cruz  presented  his  credentials  as  the  envoy 
extraordinary  and  minister  plenipotentiary  of  Guatemala  here,  July 
11,  1889.  Trior  to  that  Senor  Lainfiesta  was  the  accredited  and 
recognized  minister,  but  had  been  for  some  time  absent  from  the 
United  States.  During  his  absence  the  business  of  the  legation  was 
conducted  by  Consul  General  Baiz,  but  without  diplomatic  character." 
On  the  11th  of  January,  1890,  Senor  Cruz  sent  the  following  com- 
munication to  the  state  department:  "Mr.  Michael  II.  Cardozo, 
counsel  for  Don  Jacobo  Baiz,  in  the  suit  which  has  been  brought 
against  the  latter  by  Mr.  J.  II.  Hollander  in  New  York,  presented  to 
your  excellency  a  brief  of  the  facts  in  the  case,  and  made  applica- 
tion to  you  to  be  pleased  to  order  that  he  be  furnished  with  a  certain 
certificate  in  regard  to  the  character  of  Mr.  Baiz  during  the  absence 
of  Don  Francisco  Lainfiesta,  and  until  I  arrived  to  take  his  place. 
It  being  urgent  to  possess  this  document,  since  the  day  approaches  to 
make  use  thereof,  and  the  government  of  Guatemala  having  instruct- 

36 


CONSULAR  CASES 

ed  Mr.  Baiz  to  make  the  publication  upon  which  the  suit  is  brought, 
under  the  belief  that  he  was  its  representative  in  this  country  from 
the  day  of  Senor  Lainfiesta's  departure,  I  take  the  liberty  of  begging 
your  excellency  to  be  pleased  to  order  that  the  certificate  applied  for 
by  Mr.  Cardozo  be  issued  as  soon  as  possible,  and  sent  to  me  in  order 
that  I  may  forward  it  without  loss  of  time."  The  acting  secretary 
of  state  replied  January  21,  1890,  acknowledging  the  receipt  of 
Senor  Cruz's  note  of  the  11th,  and  continuing  thus:  "The  facts  are 
that  on  January  16,  1889,  Mr.  Lainfiesta  informed  the  department  of 
his  proposed  departure  from  the  United  States  for  Guatemala  on  a 
leave  of  absence.  In  conveying  this  information  to  the  secretary  of 
state,  Mr.  Lainfiesta  said :  '  In  the  mean  time  I  beg  your  excellency 
to  permit  Mr.  Jacob  Baiz,  consul  general  of  Guatemala  and  Honduras 
at  New  York,  to  communicate  to  the  department  of  state  any  informa- 
tion connected  with  the  peace  of  Central  America  that  may  be  of 
sufficient  importance  to  be  brought  without  delay  to  your  excellency 's 
notice. '  Referring  to  this  note  the  department,  on  January  24,  1889, 
wrote  to  Mr.  Baiz,  saying :  '  The  secretary  of  state  wiU  have  pleasure 
in  receiving  any  communication  in  relation  to  Central  America,  of 
which  you  may  be  made  the  channel,  as  intimated  by  Senor  Lain- 
fiesta. '  The  next  communication  of  the  department  to  Mr.  Baiz  bears 
date  March  6,  1889,  in  which  he  was  informed  of  the  accession  to  office 
of  the  present  secretary  of  state,  which  Mr.  Baiz  acknowledged  on  the 
following  day.  On  April  1st,  1889,  the  department  addressed  a  com- 
munication to  Mr.  Baiz,  'in  charge  of  the  business  of  the  legations  of 
Guatemala,  Salvador,  and  Honduras,'  in  which  he  was  informed  of 
the  recall  of  Mr.  Henry  C.  Hall  as  envoy  extraordinary  and  minister 
plenipotentiary  of  the  United  States  to  the  republics  of  Guatemala, 
Salvador,  and  Honduras,  and  of  the  appointment  by  the  president, 
by  and  with  the  advice  and  consent  of  the  senate,  of  Mr.  Lansing  B. 
Mizner  to  that  post.  Mr.  Baiz  was  requested  to  apprise  the  respective 
governments  of  this  appointment.  This  communication  Mr.  Baiz  ac- 
knowledged on  April  2d,  1889.  On  May  17th,  1889,  Mr.  Baiz  an- 
nounced to  the  department  your  appointment  by  the  government  of 
Guatemala  as  its  minister  plenipotentiary  at  this  capital  in  place  of 
Mr.  Lainfiesta,  which  was  duly  aclmowledged  by  the  department  on 
the  20th  of  the  same  month.  Subsequently,  correspondence  took  place 
between  the  department  and  Mr.  Baiz  in  relation  to  your  entrance 
into  the  United  States,  and  to  your  reception  as  minister.  On  June 
14,  1889,  Mr.  Baiz  inclosed  to  the  department  an  autograph  letter 
from  the  president  of  Guatemala,  dated  May  20,  1889,  to  the  presi- 
dent of  the  United  States,  relative  to  the  recall  of  Mr.  Hall  as  United 
States  minister  to  the  states  of  Central  America,    Of  this  communica- 

37 


CONSULAR  CASES 

tion  the  department  acknowledged  the  receipt,  on  June  25,  1889. 
This,  it  is  believed,  is  a  correct  resume  of  the  facts  in  regard  to  Mr. 
Baiz's  action  as  the  representative  of  Guatemala  in  the  absence  of  her 
duly  accredited  minister  from  the  United  States." 

After  the  return  to  the  rule,  counsel  appearing  in  opposition  to 
granting  the  writ  moved  for  an  order  that  the  petitioner  show  cause 
why  certain  papers  presented  by  him  should  not  be  submitted  for  the 
consideration  of  the  court  in  the  determination  of  the  matter;  and  the 
petitioner,  after  objecting  to  the  granting  of  the  order,  and  protesting 
against  the  receipt  of  the  papers,  submitted  certain  papers  on  his  part. 
These  papers  taken  in  chronological  order  are  as  follows:  A  letter 
dated  February  2,  1886,  from  the  minister  of  foreign  affairs  of  the 
republic  of  Honduras  to  Mr.  Baiz,  transmitting  an  appointment  as 
charge  d'  affaires  of  the  republic  of  Honduras  to  the  government  of 
the  United  States,  and  hoping  that  he  will  accept  said  appointment, 
*  *  filling  it  to  the  best  interests  of  the  country,  endeavoring  principally 
to  prevent  filibustering  expeditions,"  etc.  Accompanying  it  was  a 
communication  addressed  to  the  state  department,  under  date  of  Feb- 
ruary 1,  1886,  and  conveying  information  of  the  fact  of  the  appoint- 
ment. This  was  presented  to  Mr.  Bayard,  then  secretary  of  state, 
who  replied  on  the  22d  of  March,  1886,  as  follows:  "Agreeably  to  the 
promise  made  to  you  in  person  recently  by  Assistant  Secretary  Porter, 
I  have  considered  the  questions  involved  in  your  nomination  as  charge 
d'  affaires  of  Honduras  in  the  United  States.  A  difficulty  arises  in 
the  fact  stated  by  you  to  Mr.  Porter,  that  you  are  a  citizen  of  the 
United  States.  It  has  long  been  the  almost  uniform  practice  of  this 
government  to  decline  to  recognize  American  citizens  as  the  accredited 
diplomatic  representatives  of  foreign  powers.  The  statutory  and 
jurisdictional  immunities,  and  the  customary  privileges  of  right  at- 
taching to  the  ofiice  of  a  foreign  minister,  make  it  not  only  inconsist- 
ent, but  at  times  even  inconvenient,  that  a  citizen  of  this  country 
should  enjoy  so  anomalous  a  position.  The  very  few  past  exceptions 
to  this  rule  have  served  to  .show  its  propriety,  especially  when,  as  in 
your  case,  it  has  been  sought  to  supplement  the  consular  functions 
(which  an  American  citizen  may,  if  otherwise  acceptable,  hold  with 
perfect  propriety)  by  an  added  diplomatic  rank  and  function.  "Were 
it  merely  a  question  of  conducting  public  business  with  you  as  the  de 
facto  charge  d'  affaires  ad  interim  during  the  absence  of  a  regularly 
accredited  envoy  of  Honduras,  there  would  be  little  difficulty.  In 
fact,  you  now  stand  on  that  footing  for  all  practical  purposes,  since 
the  department  of  state  corresponds  with  you  as  consul  general,  upon 
whatever  diplomatic  business  may  arise ;  but  it  is  to  be  borne  in  mind 
that  this  is  done  because  the  office  of  the  envoy  is  for  the  time  being 

38 


CONSULAR  CASES 

unfilled.  Tour  substitutionary  agency  is  cheerfully  admitted,  but  this 
is  different  from  recognizing  you  as  invested  with  the  diplomatic 
character  as  the  incumbent  of  the  mission.  While  this  motive  would 
alone  constrain  me,  although  with  regret,  from  acceding  to  the  ex- 
pressed desire  of  the  government  of  Honduras,  and  receiving  you  as 
its  diplomatic  representative,  I  find  another  consideration  in  the 
phraseology  of  your  official  letter  of  credence."  The  secretary  then 
considers  the  objection  arising  out  of  the  fact  that  the  instrument 
"announces  that  the  office  of  charge  d'  affaires  is  conferred  upon  you 
for  the  express  purpose  of  negotiating  with  this  government  to  pre- 
vent the  organization  in  the  United  States  of  hostile  expeditions 
against  Honduras,  and  causing  certain  persons  named  therein  to  be 
put  under  bonds  'not  to  contrive  in  any  way  against  the  peace  of 
Honduras.'  "  The  letter  of  credence,  and  also  the  letter  of  the  Hon- 
duranean  minister  of  foreign  relations,  were  returned.  On  the  24th 
day  of  March,  1886,  consul  general  Baiz  acknowledged  the  receipt  of 
the  despatch  of  the  22d,  and  said :  "I  will  lose  no  time  to  inform  the 
government  of  Honduras  of  our  correspondence,  and  that  your  ex- 
cellency has  kindly  consented  to  admit  my  substitutionary  agency 
in  the  absence  of  the  minister,  by  virtue  of  my  being  the  consul 
general.  I  thank  you  for  this  recognition,  the  extent  of  which  I 
appreciate ;  but  in  order  to  fully  satisfy  the  goverment  of  Honduras, 
which  has  conferred  this  honor  on  me,  I  take  the  liberty  to  ask 
whether,  in  the  absence  of  a  minister,  the  state  department  will  con- 
sider the  consul  general  charge  d'  affaires  ad  hoc,  or  as  diplomatic 
agent  of  Honduras,  for  all  practical  as  well  as  official  purposes,  with- 
out relieving  me  of  duties  and  responsibilities  incumbent  on  a  citi- 
zen of  the  United  States.  The  declination  of  the  state  department 
of  my  credentials,  on  the  ground  that  they  express  a  purpose  of  a 
negotiation  not  admissible  under  the  laws  of  the  United  States,  will, 
no  doubt,  be  satisfactory  to  the  government  of  Honduras."  On  the 
3d  day  of  April,  1886,  the  secretary  of  state  answered  the  inquiry  of 
Mr.  Baiz  in  these  words:  "I  have  received  your  letter  of  the  24th 
ultimo,  in  which,  after  referring  to  the  willingness  expressed  in  my 
letter  to  you  of  the  22d  March  to  admit,  in  the  absence  of  a  minister 
of  Honduras,  your  substitutionary  agency  in  virtue  of  your  office  as 
consul  general,  you  inquire  '  whether,  in  the  absence  of  a  minister,  the 
state  department  will  consider  the  consul  general  charge  d'affaires  ad 
hoc,  or  as  a  diplomatic  agent  of  Honduras,  for  all  practical  as  well 
as  official  purposes,  without  relieving'  you  'of  duties  and  responsibil- 
ities incumbent  on  a  citizen  of  the  United  States.'  In  reply,  I  have 
to  inform  you  that  it  is  not  the  purpose  of  the  department  to  regard 
the  substitutionary  agency,  which  it  cheerfully  admits  in  your  case, 

39 


CONSULAR  CASES 

as  conferring  upon  you  personally  any  diplomatic  status  whatever. 
Your  agency  is  admitted  to  be  such  only  as  is  compatible  with  the 
continued  existence  of  a  vacancy  in  the  diplomatic  representation  of 
Honduras  in  the  United  States.  To  recognize  you  as  charge  d'affaires 
ad  hoc  would  be  to  announce  that  the  vacancy  no  longer  existed, 
and  that  diplomatic  representation  was  renewed  in  your  person.  It 
is  a  common  thing  to  resort  to  a  temporary  agency,  such  as  yours, 
in  the  conduct  of  the  business  of  a  mission.  A  foreign  minister,  on 
quitting  the  country,  often  leaves  the  affairs  of  his  office  in  the 
friendly  charge  of  the  minister  of  another  country,  but  the  latter  does 
not  thereby  become  the  diplomatic  agent  of  the  government  in  whose 
behalf  he  exerts  his  good  offices.  The  relation  established  is  merely 
one  of  courtesy  and  comity.  The  same  thing  occurs  when  the  tem- 
porary good  offices  of  a  consul  are  resorted  to.  In  neither  case  is 
a  formal  credence,  ad  hoc  or  ad  interim,  necessary." 

Michael  H.  Cardozo  and  Joseph  H.  Choate,  for  petitioner.  R. 
D.  Benedict,  for  respondent. 

]\Ir.  Chief  Justice  Fuller,  after  stating  the  facts  as  above,  de- 
livered the  opinion  of  the  court. 

The  judicial  power  of  the  United  States  extends  to  "all  eases 
affecting  ambassadors,  other  public  ministers  and  consuls."  Const, 
art.  3,  §  2.  By  section  687  of  the  revised  statutes,  it  is  provided  that 
the  supreme  court  "shall  have  exclusively  all  such  jurisdiction  of 
suits  or  proceedings  against  ambassadors,  or  other  public  ministers, 
or  their  domestics,  or  domestic  servants,  as  a  court  of  law  can  have 
consistently  with  the  law  of  nations;  and  original,  but  not  exclusive, 
jurisdiction  of  all  suits  brought  by  ambassadors,  or  other  public  min- 
isters, or  in  which  a  consul  or  a  vice-consul  is  a  party."  By  section 
563  it  is  provided  that  "the  district  courts  shall  have  jurisdiction  as 
follows :  *  *  *  Seventeenth.  Of  all  suits  against  consuls  or 
vice-consuls,"  except  for  certain  offenses.  The  petitioner  has  been, 
since  July,  1887,  the  consul  general  of  the  republic  of  Guatemala,  and 
therefore  the  district  court  had  jurisdiction  of  the  action  in  question, 
unless  he  belonged  to  the  class  of  official  personages  subject  to  suits 
or  proceedings  only  in  this  court.  This  he  insists  was  the  fact,  and 
avers  in  his  petition,  as  he  did  in  his  plea  in  the  district  court,  that 
at  the  time  of  the  commencement  of  the  action,  and  until  and  in- 
cluding the  10th  day  of  July,  1889,  which  was  the  eighth  day  after 
service  of  process  upon  him,  he  was  "the  acting  minister  and  sole 
representative  of  said  republic  [of  Guatemala]  in  the  United  States," 
and  for  that  reason  came  within  the  words  of  section  687,  "other 
pubhc  ministers."  The  exemption  asserted  ceased  on  the  10th  of 
July,  1889,  and  on  the  17th  of  July  the  petitioner  gave  a  general 

40 


CONSULAE  CASES 

notice  of  appearance  in  the  action,  but  did  not  set  up  the  want  of 
jurisdiction  until  the  25th  of  the  following  September.  Suit  could 
have  been  brought  in  that  court  against  hira  on  the  11th  day  of  July, 
but  as,  in  his  view,  this  could  not  have  been  done  on  the  29th  of  June 
or  the  2d  of  July,  he  contends  that  the  district  court  should  be  ordered 
to  dismiss  the  suit,  though  it  could  at  once  be  recommended  therein. 
But  it  is  said  that  the  appearance  did  not  Avaive  the  right  to  be  sued 
in  this  court,  rather  than  in  the  district  court,  because  that  was  the 
privilege  of  the  country  or  government  which  he  represented.  "With- 
out pausing  to  inquire  how  far  this  is  a  correct  application  of  the 
international  privilege  of  not  being  sued  at  all,  its  assertion,  even  in 
this  restricted  form,  serves  to  emphasize  petitioner's  contention  that 
he  was  at  that  time  the  minister  or  diplomatic  agent  of  the  republics 
of  Guatemala,  Salvador,  and  Honduras  in  the  United  States,  intrust- 
ed by  virtue  of  his  office  with  authority  to  represent  those  republics 
in  their  negotiations,  and  to  vindicate  their  prerogatives.  Under  sec- 
tion 2,  art.  2,  of  the  constitution,  the  president  is  vested  with  power 
to  "appoint  ambassadors,  other  public  ministers,  and  consuls,"  and 
by  section  3  it  is  provided  that  "he  shall  receive  ambassadors  and 
other  public  ministers."  These  words  are  descriptive  of  a  class  ex- 
isting by  the  law  of  nations,  and  apply  to  diplomatic  agents,  whether 
accredited  by  the  United  States  to  a  foreign  power  or  by  a  foreign 
power  to  the  United  States,  and  the  words  are  so  used  in  section  2  of 
article  3.  These  agents  may  be  called  ambassadors,  envoys,  ministers, 
commissioners,  charges  d'affaires,  agents,  or  otherwise,  but  they  pos- 
sess in  subtance  the  same  functions,  rights,  and  privileges  as  agents 
of  their  respective  governments  for  the  transaction  of  its  diplomatic 
business  abroad.  Their  designations  are  chiefly  significant  in  the 
relation  of  rank,  precedence,  or  dignity.  Atty.  Gen.  Gushing,  7  Ops. 
Atty.  Gen.  186.  Hence,  when  in  subdivision  5  of  section  1674  of 
the  revised  statutes  we  find  "diplomatic  officer"  defined  as  including 
"ambassadors,  envoys  extraordinary,  ministers  plenipotentiary,  min- 
isters resident,  commissioners,  charges  d'affaires,  agents  and  secre- 
taries of  legation,  and  none  others,"  we  understand  that  to  express 
the  view  of  congress  as  to  what  are  included  within  the  term  "public 
ministers,"  although  the  section  relates  to  diplomatic  officers  of  the 
United  States.  But  the  scope  of  the  words  "public  ministers"  is  de- 
fined in  the  legislation  embodied  in  title  47,  "Foreign  Relations," 
(Eev.  St.,  2d  Ed.,  p.  783.)  Section  4062  provides  that  "every  per- 
son who  violates  any  safe-conduct  or  passport  duly  obtained  and 
issued  under  authority  of  the  United  States,  or  who  assaults,  strikes, 
wounds,  imprisons,  or  in  any  other  manner  offers  violence  to  the  per- 
son of  a  public  minister,  in  violation  of  the  law  of  nations,  shall  be 

41 


CONSULAR  CASES 

imprisoned  for  not  more  than  three  years,  and  fined,  at  the  discre- 
tion of  the  court."  Section  4063  enacts  that  whenever  any  writ  or 
process  is  sued  out  or  prosecuted  by  any  person  in  any  court  of  the 
United  States,  or  of  a  state,  or  by  any  judge  or  justice,  whereby  the 
person  of  any  public  minister  of  any  foreign  prince  or  state,  author- 
ized and  received  as  such  by  the  president,  or  any  domestic  or  domes- 
tic sers'ant  of  any  such  minister,  is  arrested  or  imprisoned,  or  his 
goods  or  chattels  are  distrained,  seized,  or  attached,  such  writ  or  pro- 
cess shall  be  deemed  void.  Section  4064  imposes  penalties  for  suing 
out  any  wTit  or  process  in  violation  of  the  preceding  section ;  and 
section  4065  says  that  the  two  preceding  sections  shall  not  apply  to 
any  case  where  the  person  against  whom  the  process  is  issued  is  a 
citizen  or  inhabitant  of  the  United  States,  "in  the  service  of  a  public 
minister,"  and  the  process  is  founded  upon  a  debt  contracted  before 
he  entered  upon  such  service ;  nor  shall  the  preceding  section  apply 
to  any  case  where  the  person  against  whom  the  process  is  issued  is  a 
"domestic  servant  of  a  public  minister,"  unless  the  name  of  the  ser- 
vant has  been  registered  and  posted  as  therein  prescribed.  Section 
4130,  which  is  the  last  section  of  the  title,  is  as  follows:  "The  word 
'minister,'  when  used  in  this  title,  shall  be  understood  to  mean  the 
person  invested  with,  and  exercising,  the  principal  diplomatic 
functions.  The  word  'consul'  shall  be  understood  to  mean  any  person 
invested  by  the  United  States  with,  and  exercising,  the  functions  of 
consul  general,  vice  consul  general,  consul,  or  vice-consul."  Sections 
4062,  4063,  4064,  and  4065  were  originally  sections  25,  26,  27,  and 
28  of  the  Crimes  Act  of  April  30,  1790,  (1  St.  118,)  and  these  were 
drawn  from  the  statute  7  Anne,  c.  12,  which  was  declaratory  simply  of 
the  law  of  nations,  which  Lord  Mansfield  observed  in  Heathfield  v. 
Chilton,  4  Burrows,  2016,  the  act  did  not  intend  to  alter  and  could  not 
alter.  In  that  case,  involving  the  discharge  of  the  defendant  from 
custody,  as  a  domestic  serv^ant  to  the  minister  of  the  prince  bishop  of 
Liege,  Lord  Mansfield  said :  "I  should  desire  to  know  in  what  man- 
ner tbis  minister  was  accredited, — certainly  he  is  not  an  ambassador, 
which  is  the  first  rank.  Envoy,  indeed,  is  a  second  class,  but  he  is 
not  shown  to  be  even  an  envoy.  He  is  called  'minister,'  'tis  true; 
but  minister  (alone)  is  an  equivocal  term."  The  statute  of  Anne 
was  passed  in  consequence  of  the  arrest  of  an  ambassador  of  Peter  the 
Great  for  debt,  and  the  demand  by  the  Czar  that  the  sheriff  of 
Middlesex  and  all  others  concerned  in  the  arrest  should  be  punished 
with  instant  death,  (1  Bl.  Comm.  254;)  and  it  was  in  reference  to 
this  that  Lord  Ellenborough,  in  Viveash  v,  Becker,  3  Maule  &  S.  284, 
where  it  was  held  that  a  resident  merchant  of  London,  who  is  ap- 
pointed and  acts  as  consul  to  a  foreign  prince,  is  not  exempt  from  ar- 

42 


CONSULAR  CASES 

rest  on  mesne  process,  remarked:  "I  cannot  help  thinking  that  the 
act  of  parliament,  which  mentions  only  'ambassadors  and  public  min- 
isters, '  and  which  was  passed  at  a  time  when  it  was  an  object  studious- 
ly to  comprehend  all  kinds  of  public  ministers  entitled  to  these  privi- 
leges, must  be  considered  as  declaratory,  not  only  of  what  the  law  of 
nations  is,  but  of  the  extent  to  which  that  law  is  to  be  carried." 
Three  cases  are  cited  by  counsel  for  petitioner  arising  under  or  in- 
volving the  act  of  1790.  In  U.  S.  v.  Liddle,  2  Wash.  C.  C.  205,  in  the 
case  of  an  indictment  for  an  assault  and  battery  on  a  member  of  a 
foreign  legation,  it  was  held  that  the  certificate  of  the  secretary  of 
state,  dated  subsequently  to  the  assault  and  battery,  is  the  best  evi- 
dence to  prove  the  diplomatic  character  of  a  person  accredited  as 
a  minister  by  the  government  of  the  United  States.  The  certificate 
from  the  secretary  of  state,  Mr.  Madison,  stated  that  "when  Mr. 
Feronda  produced  to  the  president  his  credentials  as  charge  d'af- 
faires of  Spain,  he  also  introduced  De  Lima  as  a  gentleman  attached 
to  the  legation,  and  performing  the  duties  of  secretary  of  legation;" 
and  the  certificate  was  held  to  be  the  best  evidence  to  prove  that  Fer- 
onda was  received  and  accredited,  and  that  at  the  same  time  De  Lima 
was  presented  and  received  as  secretary  attached  to  the  legation.  In 
U.  S.  V.  Ortega,  4  Wash.  C.  C.  531,  there  was  produced  in  court  an 
official  letter  from  the  Spanish  minister  to  the  secretary  of  state,  in- 
forming him  that  he  had  appointed  Mr.  Salmon  charge  d'affaires; 
a  letter  from  the  minister  to  Mr.  Salmon ;  a  letter  from  the  secretary 
of  state  addressed  to  the  Spanish  minister,  recognizing  the  character 
of  Mr.  Salmon;  two  letters  from  the  secretary  of  state  addressed  to 
Mr.  Salmon  as  charge  d'affaires;  and  the  deposition  of  the  chief  clerk 
of  the  state  department  that  Mr.  Salmon  was  recognized  by  the  presi- 
dent as  charge  d'affaires,  and  was  accredited  by  the  secretary  of  state. 
In  U.  S.  V.  Benner,  Baldw.  234,  the  court  was  furnished  with  a 
certificate  from  the  secretary  of  state  that  the  Danish  minister  had  by 
letter  informed  the  department  that  Mr.  Brandis  had  arrived  in  this 
country  in  the  character  of  attache  to  the  legation,  and  that  said 
Brandis  had  accordingly,  since  that  date,  been  recognized  by  the  de- 
partment as  attached  to  the  legation  in  that  character.  These  cases 
clearly  indicate  the  nature  of  the  evidence  proper  to  establish  whether 
a  person  is  a  public  minister  within  the  meaning  of  the  constitution 
and  the  laws,  and  that  the  inquiry  before  us  may  be  answered  by 
such  evidence,  if  adduced. 

Was  Consul  General  Baiz  a  person  "invested  Avith  and  exercising 
the  principal  diplomatic  functions,"  within  section  4130,  or  a  "dip- 
lomatic officer,"  within  section  1674?  His  counsel  claim  in  their 
motion  that  he  was  "the  acting  minister  or  charge  d'affaires  of  the 

43 


CONSULAR  CASES 

republics  of  Guatemala,  Salvador,  and  Honduras,  in  the  United 
States,  and  so  reco^ized  by  the  state  department,  and  that  he  ex- 
ercised diplomatic  functions  as  such,  and  therefore  was  a  public  min- 
ister, within  the  statute.  By  the  conp;resses  of  Vienna  and  Aix-la- 
Chapelle  four  distinct  kinds  of  representation  were  recognized,  of 
which  the  fourth  comprised  charges  d'ajf aires,  who  are  appointed  by 
the  minister  of  foreign  affairs,  and  not  as  the  others,  nominally  or 
actually  by  the  sovereign.  Under  the  regulations  of  this  government 
the  representatives  of  the  United  States  have  heretofore  been  ranked 
in  three  grades,  the  third  being  charge  d'affaires.  Secretaries  of 
legation  act  ex  officio  as  charges  d'affaires  ad  interim,  and  in  the 
absence  of  the  secretary  of  legation  the  secretary  of  state  may  desig- 
nate any  competent  person  to  act  ad  interim,  in  which  case  he  is 
specifically  accredited  by  letter  to  the  minister  for  foreign  affairs. 
"Wlieaton  says:  "Charges  d'affaires,  accredited  to  the  ministers  of 
foreign  affairs  of  the  court  at  which  they  reside,  are  either  charges 
d'affaires  ad  hoc,  who  are  originally  sent  and  accredited  by  their 
governments,  or  charges  d'affaires  per  interim,  substituted  in  the 
place  of  the  minister  of  their  respective  nations  during  his  absence." 
Int.  Law,  (8th  Ed.)  §  215.  Ch.  de  Martens  explains  that  charges 
d'affaires  ad  hoc  on  permanent  mission  are  accredited  by  letters 
transmitted  to  the  minister  of  foreign  affairs.  Charges  d'affaires  ad 
interim  are  presented  as  such  by  the  minister  of  the  first  or  second 
cla,ss  when  he  is  about  to  leave  his  position  temporarily  or  permanent- 
ly."  1  Guide  Diplomatique,  p.  61,  §  16.  "They,"  observes  Twiss, 
in  his  Law  of  Nations,  §  192.  "  are  orally  invested  with  the  charge 
of  the  embassy  or  legation  by  the  ambassador  or  minister  himself,  to 
be  exercised  during  his  absence  from  the  seat  of  his  mission.  They 
are  accordingly  announced  in  this  character  by  him  before  his  de- 
parture to  the  minister  of  foreign  affairs  of  the  court  to  which  he  is 
accredited."  Diplomatic  duties  are  sometimes  imposed  upon  con- 
suls, but  only  in  virtue  of  the  right  of  a  government  to  designate 
those  who  shall  represent  it  in  the  conduct  of  international  affairs, 
(Calvo,  Droit  Int.  586,)  and  among  the  numerous  authorities  on  inter- 
national law  cited  and  quoted  from  by  petitioner's  counsel  the  atti- 
tude of  consuls,  on  whom  this  function  is  occasionally  conferred,  is 
perhaps  as  well  put  by  De  Clercq  and  De  Vallat  as  by  any,  as  fol- 
lows: "There  remains  a  last  consideration  to  notice,  that  of  a  con- 
sul who  is  charged  for  the  time  being  with  the  management  of  the 
affairs  of  a  diplomatic  post.  He  is  accredited  in  this  case  in  his  dip- 
lomatic capacity,  either  by  a  letter  of  the  minister  of  foreign  affairs 
of  France  to  the  minister  of  foreign  affairs  of  the  country  where  he 
is  about  to  reside,  or  by  a  letter  of  the  diplomatic  agent  whose  place 

44 


CONSULAR  CASES 

he  is  about  to  fill,  or  finally  by  a  personal  presentation  of  this  agent 
to  the  minister  of  foreign  affairs  of  the  country."  1  Guide  Pratique 
des  Consulats,  p.  93.  That  it  may  sometimes  happen  that  consuls  are 
so  charged  is  recognized  by  section  1738  of  the  revised  statutes,  which 
provides:  "No  consular  officer  shall  exercise  diplomatic  functions, 
or  hold  any  diplomatic  correspondence  or  relation  on  the  part  of  the 
United  States,  in,  with,  or  to,  the  government  or  country  to  which 
he  is  appointed,  or  any  other  country  or  government,  when  there  is 
in  such  country  any  officer  of  the  United  States  authorized  to  per- 
form diplomatic  functions  therein ;  nor  in  any  case,  unless  expressly 
authorized  by  the  president  so  to  do."  But  in  such  case  their  con- 
sular character  is  necessarily  subordinated  to  their  superior  diplomatic 
character.  "A  consul  ,"  observed  Mr.  Justice  Story,  in  The  Anne,  3 
Wheat.  435,  445,  "though  a  public  agent,  is  supposed  to  be  clothed 
with  authority  only  for  commercial  purposes.  He  has  an  undoubted 
right  to  interpose  claims  for  the  restitution  of  property  belonging  to 
the  subjects  of  his  own  country;  but  he  is  not  considered  as  a  min- 
ister or  diplomatic  agent  of  his  sovereign,  intrusted,  by  virtue  of  his 
office,  with  authority  to  represent  him  in  his  negotiations  with  foreign 
states,  or  to  vindicate  his  prerogatives.  There  is  no  doubt  that  his 
sovereign  may  specially  intrust  him  with  such  authority ;  but  in  such 
case  his  diplomatic  character  is  superadded  to  his  ordinary  powers, 
and  ought  to  be  recognized  by  the  government  within  whose  domin- 
ions he  assumes  to  exercise  it."  "When  a  consul  is  appointed  charge 
d'affaires,  he  has  a  double  political  capacity ;  but  though  invested 
with  full  diplomatic  privileges,  he  becomes  so  invested  as  charge  d'af- 
faires, and  not  as  consul,  and,  though  authorized  as  consul  to  com- 
municate directly  with  the  government  in  which  he  resides,  he  does 
not  thereby  obtain  the  diplomatic  privileges  of  a  minister.  Atty. 
Gen.  Gushing,  7  Ops.  Atty.  Gen.  342,  345.  This  is  illustrated  by  the 
ruling  of  Mr.  Secretary  Blaine,  April  12,  1881,  that  the  consul  gen- 
eral of  a  foreign  government  was  not  to  be  regarded  as  entitled  to 
the  immunities  accompanying  the  possession  of  diplomatic  character 
because  he  was  also  accredited  as  the  "political  agent,"  so-called,  of 
that  government,  since  he  was  not  recognized  as  performing  any  acts 
as  such  which  he  was  not  equally  competent  to  perform  as  consul 
general.  1  Whart.  Dig.  Int.  Law,  (2d  Ed.)  §  88,  p.  624.  We  are 
of  the  opinion  that  Mr.  Baiz  was  not,  at  the  time  of  the  commence- 
ment of  the  suit  in  question,  charge  d'affaires  at  interim  of  Guate- 
mala, or  invested  with  and  exercising  the  principal  diplomatic  func- 
tions, or  in  any  view  a  "diplomatic  officer."  He  was  not  a  public 
minister  within  the  intent  and  meaning  of  section  687,  and  the  dis- 
trict court  had  jurisdiction. 

45 


CONSULAR  CASES 

The  letter  of  Senor  Lainfiesta  of  January  16,  1889,  was  neither 
an  appointment  of  Mr.  Baiz,  as  charge  d'affaires  ad  interim,  nor 
equivalent  to  such  an  appointment.  It  was  a  request  in  terms  that 
the  secretan'  of  state  would  "please  allow  that  the  consul  general  of 
Guatemala  and  Honduras,  in  New  York,  ^Mr.  Jacob  Baiz,"  should 
communicate  to  the  office  of  the  secretary  of  state  any  matters  re- 
lating to  the  peace  of  Central  America  of  M^hich  that  department 
ought  to  be  informed  without  delay.  This  is  not  the  language  of 
designation  to  a  representative  position,  and  is  the  language  designat- 
ing a  mere  medium  of  communication ;  and  the  reply  of  Mr.  Secretary 
Bayard  so  treats  it,  in  declaring  that  the  department  would  be 
pleased  to  receive  any  communication  in  relation  to  Central  America 
of  which  Consul  General  Baiz  might  be  made  the  channel.  This 
reply  is  addressed  to  Mr.  Baiz,  as  "Consul  General  of  Guatemala  and 
Honduras,"  and  not  as  charge  d'affaires  ad  interim.  The  mere  fact 
that  the  usual  note  conveying  the  information  to  the  legations  of 
Mr.  Secretary  Blaine's  accession  chanced  to  be  addressed  to  "Senor 
Don  Jacob  Baiz.  in  charge  of  the  legations  of  Guatemala,  Salvador, 
and  Honduras,"  was  not  a  recognition  that  he  was  charge  d'affaires  ad 
interim,  or  exercising  diplomatic  functions;  and  Mr.  Baiz,  in 
acknowledging  the  receipt  of  that  announcement,  properly  signs  his 
letter  "Counsel  General."  It  may  be  that  such  announcements  are 
not  sent  to  any  but  those  exercising  diplomatic  functions;  but  this 
courtesy  could  not  operate  as  in  itself  a  deliberate  recognition  of 
the  right  to  exercise  such  functions,  nor  that  the  person  to  whom  the 
communication  was  addressed  was  in  such  exercise  as  a  matter  of  fact. 
It  was  entirely  proper,  since  Consul  General  Baiz  was  the  channel  of 
communication  between  Guatemala,  Honduras,  and  Salvador,  and 
the  state  department,  that  the  notification  should  be  sent  to  him;  and 
even  if  that  course  had  not  been  usual,  the  courtesy  could  not  be 
availed  of  to  impart  a  character  which  the  recipient  did  not  otherwise 
possess.  The  proofs  show  that  of  ten  letters  from  the  state  depart- 
ment to  Mr,  Baiz  between  January  16  and  July  10,  1889,  two  were 
addressed  to  him  as  in  charge  of  the  legations,  or  the  business  of 
the  legations,  of  Guatemala,  Salvador,  and  Honduras;  two  were  ad- 
dressed to  him  as  consul  of  Honduras;  and  six  as  consul  general  of 
Guatemala,  or  Guatemala  and  Honduras.  Of  seven  letters  from  Mr. 
Baiz  to  the  department,  one  was  signed,"  Jacob  Baiz,"  and  six,  "Jacob 
Baiz,  Consul  General."  The  acknowledgment  of  notice  of  the  acces- 
sion of  the  secretary  of  state,  and  of  the  appointment  of  Mr.  Mizner, 
and  the  transmission  of  a  letter  from  the  president  of  Guatemala,  and 
the  announcement  of  the  appointment  of  Minister  Cruz,  by  the  con- 
sul general,  can  hardly  be  regarded  as  the  performance  of  diplomatic 

46 


CONSULAR  CASES 

functions  as  such.  The  official  circular  issued  by  the  department 
of  state,  corrected  to  June  13,  1889,  gives  the  names  and  description 
of  the  charges  d'affaires  ad  interim,  in  the  case  of  countries  repre- 
sented by  ministers  who  were  absent,  and  of  countries  having  no  min- 
ister, and  the  date  of  their  presentation.  In  the  instance  of  Portugal, 
the  name  is  given  of  "consul  and  acting  consul  general,  in  charge  of 
business  of  legation,"  and  the  fact  of  the  presentation,  with  the  date, 
appears  in  the  list ;  while  in  the  instance  of  Guatemala,  Salvador, 
and  Honduras  the  name  of  Mr.  Baiz  is  referred  to  in  a  foot-note,  with 
the  title  of  consul  general  only;  nor  does  it  appear,  nor  is  it  claimed 
to  be  the  fact,  that  he  was  ever  presented.  As  stated  by  counsel, 
Mr.  Webster  took  the  ground,  in  the  case  of  M.  Hulsemann,  that  as 
charge  d'affaires  he  was  not,  as  a  matter  of  strict  right,  entitled  to  be 
presented  to  the  president;  and  this  is  in  accordance  with  the  regu- 
lations of  the  state  department,  (Reg.  p.  13.)  But  such  presentation 
is  undeniably  evidence  of  the  possession  of  diplomatic  character,  and 
so  would  be  the  formal  reception  of  a  charge  d'affaires  ad  interim  by 
the  secretary  of  state.  The  inference  is  obvious  that,  if  the  depart- 
ment of  state  had  regarded  Mr.  Baiz  as  charge  d'affaires  ad  interim, 
or  as  "invested  with  and  exercising  the  principal  diplomatic  func- 
tions," his  name  would  have  been  placed  in  the  list,  with  some  indi- 
cation of  the  fact,  as  the  title  of  charge,  or,  if  he  had  been  presented, 
the  date  of  his  presentation.  Nor  can  a  reason  be  suggested  why  the 
petitioner  has  not  produced  in  this  case  a  certificate  from  the  secre- 
tary of  state  that  he  had  been  recognized  by  the  department  of  state 
as  charge  d'affaires  ad  interim  of  Guatemala,  or  as  intrusted  with 
diplomatic  functions,  if  there  had  been  such  recognition.  A  certifi- 
cate of  his  status  was  requested  by  the  Guatemalan  minister,  and,  if 
the  state  department  had  understood  that  Mr.  Baiz  was  in  any  sense 
or  in  any  way  a  "diplomatic  representative,"  no  reason  is  perceived 
why  the  department  would  not  have  furnished  a  certificate  to  that 
effect ;  but,  instead  of  that,  it  contented  itself  with  a  courteous  reply, 
giving  what  was  in  its  judgment  a  sufficient  resume  of  the  facts, 
the  letter  being  in  effect  a  polite  declination  to  give  the  particular 
certificate  desired  because  that  could  not  properly  be  done. 

Mr.  Baiz  was  a  citizen  of  the  United  States,  and  a  resident  of 
the  city  of  New  York.  In  many  countries  it  is  a  state  maxim  that 
one  of  its  own  subjects  or  citizens  is  not  to  be  received  as  a  foreign 
diplomatic  agent,  and  a  refusal  to  receive,  based  on  that  objection, 
is  always  regarded  as  reasonable.  The  expediency  of  avoiding  a 
possible  conflict  between  his  privileges  as  such,  and  his  obligations 
as  a  subject  or  citizen,  is  considered  reason  enough  in  itself.  Wheat. 
Int.  Law  (8th  Ed.)  §  210;  2  Twiss,  Law  Nat.  p.  276,  §  186;  2  Phillim. 

47 


CONSULAR  CASES 

Int.  Law.  171.  Even  an  appointment  as  consul  of  a  native  of  the 
place  where  consular  service  is  required  is,  according  to  Phillimore, 
"perhaps  rightfully  pronounced,  by  a  considerable  living  authority, 
to  be  objectionable  in  principle."  Volume  2,  p.  246,  citing  De  Mar- 
tens et  De  Cussey,  Rec.  de  Trait,  Index  Explicatif,  p.  30,  tit.  "Con- 
suls." "Other  powers,"  says  Calvo,  (volume  1,  p.  559,  2d  Ed.,) 
"admit  without  difficulty  their  own  citizens  as  representatives  of 
foreign  states,  but  imposing  on  them  the  obligation  of  amenability 
to  the  local  laws  as  to  their  persons  and  property.  These  conditions, 
which,  nevertheless,  ought  never  to  go  so  far  as  to  modify  or  alter 
the  representative  character,  ought  always  to  be  defined  before  or 
at  the  time  of  receiving  the  agent ;  for  otherwise  the  latter  might  find 
it  impossible  to  claim  the  honors,  rights,  and  prerogatives  attached  to 
his  employment."  See,  also,  Heffter,  (3d  Fr.  Ed.)  387.  In  the 
United  States  the  rule  is  expressed  by  Mr.  Secretary  Evarts,  imder 
date  of  September  19,  1879,  thus:  "This  government  objects  to  re- 
ceiving a  citizen  of  the  United  States  as  a  diplomatic  representative 
of  a  foreign  power.  Such  citizens,  however,  are  frequently  recog- 
nized as  consular  officers  of  other  nations,  and  this  policy  is  not 
known  to  have  hitherto  occasioned  any  inconvenience."  And,  again, 
April  20,  1880,  while  waiving  the  obstacle  in  the  particular  instance, 
he  says:  "The  usage  of  diplomatic  intercourse  between  nations 
is  averse  to  the  acceptance,  in  the  representative  capacity,  of  a  person 
who,  while  native  bom  in  the  country  which  sends  him,  has  yet  ac- 
quired lawful  status  as  a  citizen  by  naturalization  of  the  country  of 
which  he  is  sent."  1  Whart.  Dig.  Int.  Law  (2d  Ed.)  §  88a,  p.  628. 
Of  course  the  objection  would  not  exist  to  the  same  extent  in  the  case 
of  designation  for  special  purposes  or  temporarily,  but  it  is  one 
purely  for  the  receiving  government  to  insist  upon  or  waive  at  its 
pleasure.  The  presumption,  therefore,  would  ordinarily  be  against 
Mr,  Baiz's  contention,  and,  as  matter  of  fact,  we  find  that,  when  in 
1886  he  was  appointed  charge  d'affaires  of  the  republic  of  Honduras 
to  the  government  of  the  United  States,  Mr.  Secretary  Bayard  de- 
clined receiving  him  as  the  diplomatic  representative  of  the  govern- 
ment of  that  country,  because  of  his  being  a  citizen  of  the  United 
States,  and  advised  him  that  "it  has  long  been  the  almost  uniform 
practice  of  this  government  to  decline  to  recognize  American  citizens 
as  the  accredited  diplomatic  representatives  of  foreign  powers.  The 
statutory  and  jurisdictional  immunities,  and  the  customary  privi- 
leges of  right  attaching  to  the  office  of  a  foreign  minister  make  it 
not  only  inconsistent,  but  at  times  even  inconvenient,  that  a  citizen  of 
this  country  should  enjoy  so  anomalous  a  position."  And  in  a  sub- 
sequent communication  rendered  necessary  by  a  direct  question  of 

48 


CONSULAR  CASES 

Mr.  Baiz,  the  secretary  informs  liiin  "that  it  is  not  the  purpose  of 
the  department  to  regard  the  substitutionary  agency,  which  it  cheer- 
fully admits  in  your  case,  as  conferring  upon  you  personally  any 
diplomatic  status  whatever."  This  correspondence  disposes  of  the 
question  before  us.  The  objection  which  existed  in  1886  to  the 
reception  of  Mr-  Baiz  as  charge  d'affaires  ad  hoc  or  ad  interim,  or 
according  to  him  any  diplomatic  status  whatever,  whether  temporary 
or  otherwise,  existed  in  1889 ;  and  it  is  out  of  the  question  to  assume 
that  the  state  department  intended  to  concede  the  diplomatic  status 
between  January  16  and  July  10,  1889,  upon  the  request  of  Senor 
Lainfiesta  that  Consul  General  Baiz  might  be  allowed  to  be  a  medium 
of  communication  during  his  absence,  w^hieh  it  had  refused  to  accord 
to  the  republic  of  Honduras  itself.  It  is  evident  that  the  statement 
of  the  assistant  secretary,  October  4,  1889,  was  quite  correct,  that 
"the  business  of  the  legation  (of  Guatemala)  was  conducted  by  Con- 
sul General  Baiz,  but  without  diplomatic  character." 

It  is  objected  that  we  ought  not  to  have  allowed  these  official 
papers  to  come  before  us,  but  should  have  prohibited  the  district 
court  from  exercising  jurisdiction,  because  the  evidence  that  estab- 
lished it  had  not  all  been  before  that  court  when  the  question  was 
raised;  but  the  rule  governing  this  class  of  cases  involves  no  such 
consequences.  The  district  judge  was  of  opinion  that  inasmuch 
as  there  were  two  kinds  of  direct  evidence  which  would  show  that  the 
defendant  was  a  "public  minister,"  to-wit:  (1)  A  certificate  of 
the  secretary  of  state  that  he  was  such,  was  received  as  such,  and 
was  exercising  such  functions;  or  (2)  proof  of  the  exercise  by  the 
defendant  of  "the  principal  diplomatic  functions,"  under  some  one 
of  the  titles  of  diplomatic  office,  as  recognized  by  our  statute  and  the 
law  of  nations;  and  as  such  direct  evidence  had  not  been  furnished, 
and  the  plaintiff  was  not  required  to  produce  his  counter-evidence  on 
a  motion  like  that  under  consideration  instead  of  at  the  trial, — he 
was  justified  in  retaining  jurisdiction  until  the  issue  raised  by  the 
pleadings  was  regularly  determined.  But  to  this  latter  suggestion 
counsel  for  petitioner  answered  in  argument:  "At  any  rate,  in  this 
court,  exercising  its  appropriate  jurisdiction  to  entertain  an  appli- 
cation for  a  writ  of  prohibition  or  mandamus,  the  respondent  here 
is  called  upon  to  produce  any  evidence  that  exists  to  coimtervail  the 
petitioner's  proof  of  his  privilege."  This  is  undoubtedly  the  cor- 
rect view.  The  question  here  is  whether  the  district  court  had  juris- 
diction, and  not  whether  its  order  refusing  to  set  aside  the  service  of 
summons  and  the  subsequent  proceedings  in  the  action,  and  dismiss- 
ing the  same,  should  be  reversed.  The  practice  in  prohibition  was 
formerly  to  file  a  suggestion,  an  affidavit  in  support  of  which  was  re- 

49 


CONSULAR  CASES 

quired  where  the  prohibition  was  moved  for  upon  anything  not 
appearing  upon  the  face  of  the  proceedings.  Upon  a  rule  to  show 
cause,  if  it  appeared  to  the  court,  on  cause  sho^vn,  that  the  surmise 
was  not  true,  or  not  clearly  sufficient  to  ground  the  prohibition  upon, 
it  would  be  denied,  otherwise  the  rule  would  be  made  absolute;  or, 
if  the  matter  were  doubtful,  the  party  was  ordered  to  declare,  and 
issue  joined  on  such  declaration  w^as  regularly  tried,  being  in  the 
nature  of  an  issue  to  inform  the  conscience  of  the  court.  2  Sell.  Pr. 
313,  321,  325.  And  in  mandamus  if  the  case  were  not  governed  by 
the  return  to  the  alternative  writ,  but  a  traverse  of  the  return  was 
allowed,  issues  were  made  up,  and  a  trial  had.  If  the  matter  can  be 
disposed  of  upon  the  rule  to  show  cause,  that  course  may  be  pursued, 
but  the  applicable  principles  are  the  same.  The  alleged  want  ol 
jurisdiction  depends  upon  questions  of  fact.  It  was  purely  dis- 
cretionary whether  this  evidence  should  be  admitted  at  the  time  it 
was  presented;  and,  in  a  proceeding  involving  the  inquiry  under  con- 
sideration, it  was  plainly  our  duty  to  permit  it  to  come  in,  the  peti- 
tioner being  afforded,  as  he  was,  the  opportunity  for  explanation,  and 
the  introduction  of  such  other  evidence  as  he  chose  to  produce.  In 
Ex  parte  Hitz,  111  U.  S.  766,  4  Sup.  Ct.  Rep.  698,  which  was  an  ap- 
plication for  a  writ  of  certiorari,  commanding  the  supreme  court  of 
the  District  of  Columbia  to  certify  to  this  court  an  indictment  and 
the  proceedings  thereunder,  on  the  ground  that,  when  the  indictment 
was  filed,  and  when  the  offenses  therein  charged  were  committed,  he 
was  the  diplomatic  representative  of  the  Swiss  Confederation,  the 
court  directed  a  preliminary  inquiry,  and,  in  doing  so,  Mr.  Chief 
Justice  Waite  said:  "As  it  is  conceded  that  the  petitioner  is  not 
now  in  the  diplomatic  service  of  Switzerland,  and  was  not  when  all 
the  proceedings  in  the  supreme  court  of  the  District  of  Columbia 
subsequent  to  the  indictment  were  had,  counsel  are  directed  to  re- 
quest the  secretary  of  state  to  certify  whether  John  Hitz  was  at  any 
time  accredited  to  and  recognized  by  the  government  of  the  United 
States  as  public  or  political  agent  or  charge  d'affaires  of  the  republic 
of  Switzerland,  and,  if  so,  for  what  period  of  time,  and  up  to  and  in- 
cluding what  date."  The  counsel  having  complied  with  that  request, 
the  court,  upon  receiving  the  information  as  to  what  the  records  of 
the  department  showed,  dismissed  the  petition. 

Regarding  the  matter  in  hand  as,  in  its  general  nature,  one  of 
delicacy  and  importance,  we  have  not  thought  it  desirable  to  discuss 
the  suggestions  of  counsel  in  relation  to  the  remedy,  but  have  pre- 
ferred to  examine  into  and  pass  upon  the  merits.  We  ought  to  add 
that  while  we  have  not  cared  to  dispose  of  this  case  upon  the  mere 
absence  of  technical  evidence  we  do  not  assume  to  sit  in  judgment 

50 


CONSULAR  CASES 

upon  the  decision  of  the  executive  in  reference  to  the  public  char- 
acter of  a  person  claiming  to  be  a  foreign  minister,  and  therefore  have 
the  right  to  accept  the  certificate  of  the  state  department  that  a 
party  is  or  is  not  a  privileged  person,  and  cannot  properly  be  asked 
to  proceed  upon  argumentative  or  collateral  proof.  Our  conclusion 
is,  as  already  stated,  that  the  district  court  had  jurisdiction,  and  we 
accordingly  discharge  the  rule  and  deny  the  writs/ 

BAIZ  V.  MALO,  (1899,  U.  S.— Columbia) 

58  N.  Y.  Supp.  806. 

Gildersleeve,  Supreme  Court  of  New  York. 

[Vice-consul  of  Columbia  by  application  of  the  treaty  of  1846 
receives  the  benefit  of  the  most  favored  nation  treatment  and  the  ap- 
plication of  the  provisions  of  the  treaty  of  1853  with  France,  so 
that  he  cannot  be  compelled  to  attend  as  a  witness.  Cites  U.  S.  v. 
Trumbull,  48  Fed.  96.— Ed.] 

BALTICA,  THE,  (1855,  Great  Britain— Denmark) 

1  Spinks  Prize  Cases  264. 

Lushington,  High  Court  of  Admiralty. 

[Danish  consul,  Dane  by  birth,  who  was  merchant  at  Libau, 
considered  to  have  Russian  nationality  and  transfer  of  his  ship  to 
avoid  seizure  invalidated.  This  decision  was  reversed  later  on  an- 
other point. — Ed.] 

BARBER,  TRUSTEES  OF  MRS.,  (1835,  Great  Britain) 

5  L.  J.  M.  S.  C.  p.  81. 

Per  Curiam,  Court  of  Common  Pleas. 

(Syllabus)  The  certificate  required  in  support  of  an  affidavit  of  the  acknowl- 
edgment of  a  fine  by  a  married  woman  in  a  foreign  country,  may  be  given  by  the 
British  consul  there  resident,  as  it  is  a  notarial  act,  within  6  Geo.  4  C.  87  S.  20. 

The  conusors  of  this  fine  being  resident  in  Boston,  in  America, 
the  acknowledgment  was  taken  before  special  commissioners,  and  the 
affidavit  sworn  before  the  Judge  of  the  Municipal  Court  of  Boston. 
This  affidavit  was  authenticated  by  the  British  consul,  instead  ot 
a  notary  public  ^  in  consequence  of  which  the  clerk  of  the  enrollments 
refused  to  receive  the  certificate  of  acknowledgment. 

Talfourd,  Serj.,  now  moved,  that  the  officers  might  be  directed  to 
receive  such  certificate,  submitting,  that  the  certificate  of  the  consul 

^From  10  Sup.  Ct.  Eep.  854. 

^  See  Eule,  Hilary  term,  14  Geo.  3,  and  Cruttenden  v.  Bourbell,  1  Taunt.  144. 

51 


CONSULAR  CASES 

■was  a  notarial  act,  which  he  was  empowered  to  perform  by  the  Stat. 
6  Geo.  4  C.  87  S.  20. 

The  court  after  some  consideration,  granted  the  application. 
BARBUIT'S  CASE,  (1737,  Great  Britain— Prussia) 

Forrester's  Cases  Temp.  Lord  Talbot  281. 

Talbot,  Chancery. 

BARBUIT  had  a  commission,  as  agent  of  commerce  from  the 
King  of  Prussia  in  Great  Britain,  in  the  year  1717,  which  was  ac- 
cepted here  by  the  Lords  Justices  then  the  King  was  abroad. 
After  the  late  King's  demise  his  commission  was  not  renewed  until 
1735,  and  then  it  was,  and  allowed  in  a  proper  manner ;  but  with  the 
recital  of  the  powers  given  him  in  the  commission,  and  allowing 
him  as  such.  These  commissions  were  directed  generally  to  all  the 
persons  whom  the  same  should  concern  and  not  to  the  King;  and  his 
business  described  in  the  commissions  was,  to  do  and  execute  what  his 
Prussian  Majesty  should  think  fit  to  order  with  regard  to  his  sub- 
jects trading  in  Great  Britain;  to  present  letters,  memorials  and 
instruments  concerning  trade  to  such  persons,  and  at  such  places,  as 
should  be  convenient,  and  to  receive  resolutions  thereon ;  and  thereby 
his  Prussian  Majesty  required  all  persons  to  receive  writings  from 
his  hands,  and  give  him  aid  and  assistance  Barbuit  lived  here  near 
twenty  years,  and  exercised  the  trade  of  a  tallow-chandler,  and 
claimed  the  privilege  of  an  ambassador  or  (281) foreign  minister,  to  be 
free  from  arrests. (c)     After  hearing  counsel  on  this  point, 

LORD  CHANCELLOR.  A  bill  was  filed  in  this  Court  against 
the  defendant  in  1725,  upon  which  he  exhibited  his  cross  bill,  stiling 
himself  merchant.  On  the  hearing  of  these  causes  the  cross  bill  was 
dismi.ssed;  and  in  the  other,  an  account  decreed  against  the  defen- 
dant. The  account  being  passed  before  the  master,  the  defendant 
took  exceptions  to  the  master's  report,  which  were  over-ruled;  and 
then  the  defendant  was  taken  upon  an  attachment  for  non-payment, 
&c.  And  now,  ten  years  after  the  commencement  of  the  suit,  he 
in.si.sts  he  is  a  public  minister,  and  therefore  all  the  proceedings 
against  him  null  and  void.  Though  this  is  a  very  unfavorable  case, 
yet  if  the  defendant  is  truly  a  public  minister,  I  think  he  may  now 
insist  upon  it;  for  the  privilege  of  a  public  minister  is  to  have  his 
person  sacred  and  free  from  arrests,  not  on  his  own  account,  but  on 
the  account  of  those  he  represents,  and  this  arises  from  the  necessity 


(c)  Vide  Triquet  and  others  v.  Bath,  .3  Burr.  1840.  S.  P.  1  Black,  Eep.  471, 
8.  C. 

52 


CONSULAR  CASES 

of  the  thing,  that  nations  may  have  intercourse  with  one  another  in 
the  same  manner  as  private  persons,  by  agents,  when  they  cannot 
meet  themselves.  And  if  the  fomidation  of  this  privilege  is  for  the 
sake  of  the  prince  by  whom  an  ambassador  is  sent,  and  for  the  sake 
of  the  business  he  is  to  do,  it  is  impossible  that  he  can  renounce  such 
privilege  and  protection:  for,  by  his  being  thrown  into  prison  the 
business  must  inevitably  suffer.  The  question  is,  whether  the  de- 
fendant is  such  a  person  as  7  Anne,  cap.  10.  describes,  which  is  only 
declaratory  of  the  ancient  universal  (d)  jus  gentium;  the  words  of 
the  statute  (282)  are,  (ambassadors  or  other  public  ministers)  and  the 
exception  of  persons  trading  relates  only  to  their  servants,  the  parlia- 
ment never  imagining  that  the  ministers  themselves  would  trade. 
I  do  not  think  the  words  ambassadors,  or  other  public  ministers,  are 
synonymous.  I  think  that  the  word  ambassadors  in  the  act  of  parlia- 
ment, was  intended  to  signify  ministers  sent  upon  extraordinary 
occasions,  which  are  commonly  called  ambassadors  extraordinary ;  and 
public  ministers  in  the  act  take  in  all  others  who  constantly  reside 
here;  and  both  are  entitled  to  these  privileges.  The  question  is, 
whether  the  defendant  is  within  the  latter  words  ?  It  has  been  ob- 
jected that  he  is  not  a  public  minister,  because  he  brings  no  creden- 
tials to  the  King.  Now  although  it  be  true  that  this  is  the  most 
common  form,  yet  it  would  be  carrying  it  too  far  to  say,  that  these 
credentials  are  absolutely  necessary;  because  all  nations  have  not 
the  same  form  of  appointment.  It  has  been  said,  that  to  make  him 
a  public  minister  he  must  be  employed  about  state  affairs.  In  which 
case,  if  state  affairs  are  used  in  opposition  to  commerce,  it  is  wrong; 
but  if  only  to  signify  the  business  between  nation  and  nation  the 
proposition  is  right:  for,  trade  is  a  matter  of  state,  and  of  a  public 
nature,  and  consequently  a  proper  subject  for  the  employment  of  an 
ambassador.  In  treaties  of  commerce  those  employed  are  as  much 
public  ministers  as  any  others;  and  the  reason  for  their  protection 
holds  as  strong:  and  it  is  of  no  weight  with  me  that  the  defendant 
was  not  to  concern  himself  about  other  matters  of  state,  if  he  wa& 
authorized  as  a  public  minister  to  transact  matters  of  trade.  It  is 
not  necessary  that  a  minister's  commission  should  be  general  to 
entitle  him  to  protection ;  but  it  is  enough  that  he  is  to  transact  any 
one  particular  thing  in  that  capacity,  as  every  ambassador  extraor- 
dinary is;  or  to  remove  some  particular  difficulties,  which  might 
otherwise  occasion  war.  But  what  creates  my  difficulty  is,  that  I 
do  not  think  he  is  instructed  to  transact  (283)  affairs  between  the 
two  crowns:  the  commission  is,  to  assist  his  Prussian  Majesty's  sub- 

(d)   Vide  1  Black.  Com.  255,  -where  the  circumstance  which  occasioned  the 
making  this  act  is  stated  at  large. 

53 


CONSULAR  CASES 

jects  here  in  their  commerce ;  and  so  is  the  allowance.  Now  this  gives 
him  no  authority  to  intermeddle  with  the  affairs  of  the  King:  which 
makes  his  employment  to  be  in  the  nature  of  a  consul.  And  although 
he  is  called  only  an  agent  of  commerce,  I  do  not  think  the  name 
alters  the  case.  Indeed  there  are  some  circumstances  that  put  him 
below  a  consul ;  for,  he  wants  the  power  of  judicature,  which  is  com- 
monly given  to  consuls.  Also  their  commission  is  usually  directed  to 
the  prince  of  the  country ;  which  is  not  the  present  case :  but  at  most 
he  is  only  a  consul. 

It  is  the  opinion  of  Barbeyrac,  Wincquefort  and  others,  that  a 
consul  is  not  entitled  to  the  jus  gentium  belonging  to  ambassadors. 

And  as  there  is  no  authority  to  consider  the  defendant  in  any 
other  view  than  as  a  consul,  unless  I  can  be  satisfied  that  those  act- 
ing in  that  capacity  are  entitled  to  the  jus  gentium,  I  cannot  dis- 
charge him.     (e). 

Note:  The  person  was  after  discharged  by  the  secretary's  office, 
satisfying  the  creditors. 

BECHERDASS  AMBAIDASS,  THE,  (1871,  U.  S.— Great  Britain) 

1  Low.  569;  Fed.  Cases  1,203. 

Lowell,  District  Court. 

(Extract)  And  my  opinion  is,  that  justice  does  not  require  me 
to  take  jurisdiction  against  the  protest  of  the  consul.  That  objec- 
tion has  weight  as  showing  the  opinion  of  the  person  who  is  entrusted 
with  the  care  of  British  seamen,  that  there  is  no  such  hardship  in 
this  case  as  required  the  libellants  to  be  paid  here  rather  than  at 
home.  His  opinion  of  the  law  too  must  have  some  weight,  because 
he  is  in  a  position  to  know  and  act  upon  it  often. 

BEE,  THE,  (1804,  U.  S.) 
Ware,  3.32;  Fed.  Cases  1,  219. 
Ware,  District  Court. 

[Seems  to  involve  no  question  about  consuls.  Salvage  case. 
British  consul  appeared  for  the  foreign  owners. — Ed.] 

(«)  In  the  discusgion  of  tbis  case  the  court  seems  to  have  determined,  that 
a  person  residing  in  this  country  in  the  capacity  of  foreign  minister,  cannot  by 
any  act  or  acts  of  his  own,  waive  that  privilege  of  protection  which  the  law  of  na- 
tions has  annexed  to  a  situation  so  important.  That  a  foreign  minister,  being  or 
becoming  a  trader,  does  not  thereby  lose,  or  forfeit  the  privilege  personally  an- 
nexed to  him ;  and  therefore,  the  only  reason  why  the  court  in  the  present  in- 
stance did  not  think  the  defendant  entitled  to  the  protection  which  he  claimed, 
was,  that  the  employment  which  he  was  invested  with,  could  at  most  be  considered 
only  as  the  same  with,  or  equal  to  that  of  consul,  which  according  to  the  best 
writers  upon  the  subject,  was  not  entitled  to  the  Jus  Gentium,  or  privilege  be- 

54 


CONSULAR  CASES 
BELGENIAND/  THE,  (1884,  U.  S.) 

114  U.  S.  355;  5  Sup.  Ct,  Eep.  860. 
Bradley,  Supreme  Court. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Eastern  District  of  Pennsylvania. 

BRADLEY,  J.  This  case  grows  out  of  a  collision  which  took 
place  on  the  high  seas  between  the  Norwegian  bark  Luna  and  the 
Belgian  steamship  Belgenland,  by  which  the  former  was  run  down 
and  sunk.  Part  of  the  crew  of  the  Luna,  including  the  master, 
were  rescued  by  the  Belgenland  and  brought  to  Philadelphia,  The 
master  immediately  libeled  the  steamship  on  behalf  of  the  owners 
of  the  Luna  and  her  cargo,  and  her  surviving  crew,  in  a  cause  civil 
and  maritime.  The  libel  stated  in  substance  that  the  bark  Luna,  of 
359  tons,  was  on  a  voyage  from  Porto  Rico  to  Queenstown,  or  Fal- 
mouth, with  a  cargo  of  sugar,  and  when  in  latitude  44°  33',  and  longi- 
tude 21°  43',  was  met  by  the  steamship  Belgenland,  end  on,  between 
1  and  2  in  the  morning,  and  was  run  down  and  sunk  by  her,  only 
five  of  her  crew  escaping ;  that  the  light  of  the  steamship  was  observed 
right  ahead  when  a  mile  or  more  off ;  that  the  bark  kept  her  course, 
as  was  her  duty  to  do;  and  that  the  steamship  took  no  measures  to 
avoid  her,  but  came  on  at  full  speed  until  she  struck  the  Luna;  and 
that  the  collision  was  altogether  the  fault  of  those  in  charge  of  the 
steamship. 

The  master  of  the  Belgenland  appeared  for  her  owners,  and  filed 
an  answer,  denying  that  the  Luna,  at  the  time  of  the  collision,  was 
sailing  on  the  course  alleged,  and  averred  that  she  was  crossing  the 
bows  of  the  steamship,  and  must  have  changed  her  course,  and  that 
this  was  the  cause  of  the  collision ;  that  the  Luna  was  not  discovered 
until  the  instant  of  the  collision,  when  it  was  too  late  to  alter  the 
course  of  the  steamship;  and  that  the  reason  w^hy  the  bark  was  not 
seen  before,  was  that  she  was  enveloped  in  a  shower  of  rain  and  mist, 
and  that  the  steamship  was  plunging  into  a  heavy  head  sea,  throw- 
ing water  over  her  turtle-deck  forward.  The  proctor  for  the  Belgen- 
land, at  the  time  of  filing  his  answer,  excepted  to  the  jurisdiction  of 
the  court,  and  stated  for  cause  that  the  alleged  collision  took  place 
between  foreign  vessels  on  the  high  seas,  and  not  within  the  juris- 
diction of  the  United  States;  that  the  Belgenland  was  a  Belguim 
vessel,  belonging  to  the  port  of  Antwerp,  in  the  kingdom  of  Belgium, 

longing  to  ambassadors  or  ministers  who  are  entrusted  to  transact  matters  of  state 
or  other  affairs  between  two  nations.  That  the  laws  of  nations  (which  in  its  full- 
est extent  was  and  formed  part  of  the  law  of  England),  was  the  rule  of  decision  in 
cases  of  this  kind;  and  that  the  act  of  parliament  was  declaratory  of  it,  and 
occasioned  by  a  particular  incident. 

^S.  C.  5  Fed.  Eep.  86;  9  Fed.  Eep.  126.  576,  and  16  Fed.  Eep.  430. 

55 


CONSULAR  CASES 

rimning  a  regular  line  between  Antwerp  and  the  ports  of  New  York 
and  Philadelphia;  and  that  the  bark  Luna  was  a  Norwegian  vessel, 
and  that  no  American  citizen  was  interested  in  the  bark  or  her  cargo. 
The  district  court  decided  in  favor  of  the  libelant,  and  rendered  a 
decree  for  the  various  parties  interested,  to  the  aggregate  amount  of 
$50,278.23.  An  appeal  was  taken  to  the  circuit  court,  which  found 
the  following  facts,  to-wit: 

"  (1)  Between  one  and  two  o'clock  on  the  morning  of  September 
3, 1879,  in  mid-ocean,  a  collision  occurred  between  the  Norwegian  bark 
Luna,  on  her  voyage  from  Humaeao,  in  Porto  Rico,  to  Queenstown  or 
Falmouth,  and  the  steamship  Belgenland,  on  a  voyage  from  Antwerp 
to  Philadelphia,  which  resulted  in  the  sinking  of  the  bark,  in  the 
total  loss  of  the  vessel  and  her  cargo,  and  in  the  drowning  of  five  of 
her  crew. 

"  (2)  The  wind  was  between  S.  W.  and  W.  S.  W.,  and  there  was 
not  much  sea,  but  a  hea^y  swell.  The  bark  was  running  free,  heading 
S.  E.  by  E.  half  E.,  having  the  wind  on  her  star-board  quarter.  All  her 
square  sails  were  set  except  her  main-royal,  and  she  carried  also  her 
fore,  main,  and  mizzen  stay-sails  and  inner  jib.  Her  yards  were  braced 
a  little,  her  main  sheet  was  down,  but  the  weather-clew  was  up.  She 
was  making  about  seven  and  one-half  knots.  Her  watch  on  deck  con- 
sisted of  the  first  mate  and  three  men ;  an  able  seaman  was  on  the 
lookout  on  the  top-gallant  forecastle,  and  a  capable  helmsman  was  at 
the  wheel.  She  carried  a  red  light  on  her  port  side  and  a  green  light 
on  her  starboard  side,  properly  set  and  burning  brightly,  which 
could  be  seen,  on  a  dark  night,  and  with  a  clear  atmosphere,  at  least 
two  miles.  The  character  and  location  of  these  lights  conformed  to 
the  regulations  of  the  bark's  nationality,  which  are  the  same  as 
those  of  the  British  board  of  trade.  About  1.45  o'clock  the  lookout 
sighted  the  white  mast-head  light  of  a  steamer  right  ahead,  distant,  as 
he  thought,  about  a  mile,  and  reported  it  at  once  to  the  mate,  who 
cautioned  the  man  at  the  wheel  to  'keep  her  steady  and  be  very  care- 
ful,' and  the  bark  held  her  course.  No  side  lights  on  the  steamer 
were  seen  from  the  bark,  but,  as  the  vessels  approached  each  other, 
the  white  light  of  the  steamer  gradually  drew  a  little  on  the  port 
how  of  the  bark  for  three  or  four  minutes.  The  mate  of  the  bark 
seeing  the  steamer's  sails,  and  that  she  was  heading  directly  for  the 
bark,  was  clo.se  aboard  of  her,  and  reasonably  apprehending  that  a 
collision  was  inevitable  ordered  the  bark's  helm  hard  a-port.  In  a 
few  seconds  the  steamer's  starboard  light  came  into  view,  and  in 
another  instant  she  struck  the  bark  on  her  port  side,  cutting  her  in 
two  obliquely  from  the  after-part  of  her  fore  rigging  to  the  fore-part 
of  the  main  rigging. 

56 


CONSULAR  CASES 

"(3)  The  Belgenland  was  steering  N.  W.  by  W.  half  W.  by 
compass,  and  making  about  eleven  knots.  Her  second  officer  had 
charge  of  the  deck,  and  his  watch  was  composed  of  ten  able  seamen, 
two  quartermasters,  the  second  boatswain,  and  the  fourth  officer. 
One  able  seaman  was  stationed  on  the  lee  or  starboard  side  of  the 
bridge  as  a  lookout.  The  second  officer  was  on  the  bridge.  The 
fourth  officer  was  stationed  at  the  after  or  standard  compass,  which 
was  near  the  mizzen-mast,  but  at  the  time  was  on  the  bridge,  having 
come  there  to  report  a  cast  of  the  log.  A  quartermaster  was  at  the 
wheel.  The  rest  of  the  watch  were  underneath  the  turtle-back  or 
top  gallant  forecastle.  The  steamer  was  four  hundred  and  sixteen 
feet  long  and  about  thirty-eight  feet  beam.  The  bridge  was  one 
hundred  and  fifty  or  one  hundred  and  eighty  feet  from  her  bow,  and 
was  six  or  seven  feet  higher  than  the  top  of  the  turtle-back,  which 
was  about  twenty-five  feet  above  the  water.  The  steamer  had  her 
fore,  main,  and  mizzen  try-sails,  fore  stay-sails,  and  jib  set  and 
drawing,  and  probably  her  jigger  also.  She  heeled  to  starboard  from 
ten  to  fifteen  degrees. 

'*  (4)  The  only  lookout  on  the  steamer  was  on  the  bridge.  None 
was  on  the  turtle-back,  although  it  would  have  been  entirely  safe  to 
station  one  there,  for  the  alleged  reason  that  the  vessel  was  plunging 
into  a  head  sea,  and  taking  so  much  water  over  her  bows  that  he 
would  have  been  of  no  use  there. 

"(5)  The  bark  was  not  seen  by  those  in  charge  of  the  steamer 
until  just  at  the  instant  of  the  collision,  when  the  second  officer  saw 
her  head  sails  just  across  the  steamer's  bow,  and  the  lookout  in  the 
lee  side  of  the  bridge  saw  her  after-sails  and  stem. 

**  (6)  The  moon  was  up,  but  was  obscured  by  clouds.  There  was 
no  fog,  but  occasional  rain,  with  mist,  and  the  wind  was  blowing 
from  the  S.  W.  to  W.  S.  W. 

"(7)  Objects  could  be  seen  at  a  distance  of  from  five  hundred 
yards  to  a  mile.  The  mast-head  light  of  the  steamer  was  sighted,  and 
at  once  reported  by  the  lookout  on  the  bark,  at  the  distance  of  about 
a  mile ;  the  port  light  of  the  bark  was  seen  by  a  steerage  passenger  on 
the  steamer,  looking  out  of  his  room  just  imder  the  bridge,  and  re- 
ported to  his  room-mates  long  enough  before  the  collision  to  enable 
the  second  steerage  steward,  who  heard  the  report,  to  go  up  the  com- 
panion ladder,  cross  the  deck,  and  reach  the  steamer's  rail;  after 
the  collision,  the  mizzen-mast  of  the  bark  was  all  of  her  above  water, 
and  this  was  distinctly  seen  from  the  steamer  when  she  was  at  the 
distance  of  five  hundred  yards  from  it. 

"(8)  The  damages  caused  by  the  collision  were  assessed  at 
$50,248.23." 

57 


CONSULAR  CASES 

Upon  tlicse  facts  the  court  below  deduced  the  following  conclu- 
sions : 

"(1)  That  the  vessels  were  approaching  each  other  from  op- 
posite directions,  upon  lines  so  close  to  each  other  as  to  involve  the 
necessity  of  a  deflection  by  one  or  the  other  of  them  to  avoid  a 
collision. 

"(2) That  the  lookout  on  the  bark  saw  the  steamer  when  she 
was  nearly  a  mile  distant,  and  she  was  held  steadily  on  her  course,  and 
that  she  thereby  fulfilled  her  legal  obligation.  Even  if  her  helm  was 
ported,  it  was  at  a  time  and  under  circumstances  which  did  not  in- 
volve any  culpability  on  her  part. 

"(3)  That  it  was  the  duty  of  the  steamer  to  keep  out  of  the 
way  of  the  bark,  and,  to  that  end,  so  to  change  her  course  as  to  pre- 
clude all  danger  of  collision. 

"  (4)  That  the  bark  could  and  ought  to  have  been  seen  by  the 
steamer  when  they  were  sufficiently  distant  from  each  other  to  en- 
able the  steamer  to  give  the  bark  enough  sea-room  to  avert  any  risk 
of  collision.  In  this  failure  to  observe  the  bark  the  steamer  was 
negligent. 

"(5)  No  satisfactory  or  sufficient  reason  is  furnished  by  the 
respondents'  evidence  for  this  failure  of  observation.  If  it  resulted 
from  the  inattention  of  the  steamer's  lookout,  or  because  their  vision 
was  intercepted  by  her  fore  try-sail,  she  was  clearly  culpable.  If  it 
is  explicable  by  the  condition  of  the  atmosphere,  no  matter  by  what 
cause  it  was  produced,  it  was  the  steamer's  duty  to  reduce  her  speed, 
and  to  place  a  lookout  on  her  turtle-back.  An  omission  to  observe 
these  precautions  was  negligence.  But,  considering  the  proof  that  the 
bark  held  her  course,  and  that  the  steamer  might  have  seen  her  by 
proper  vigilance,  when  suitable  precaution  against  collision  might 
have  been  taken,  a  mere  speculative  explanation  of  the  steamer's  pre- 
sumptive culpability  cannot  be  accepted  as  sufficient." 

A  decree  was  thereupon  entered,  affirming  the  decree  of  the  dis- 
trict court  in  favor  of  the  libelants  for  the  sum  of  $50,748.23,  with 
interest  from  March  25,  1881,  amoiuiting  to  $51,954.14,  and  costs.  A 
reargument  was  had  on  the  question  of  jurisdiction,  and  the  court 
held  and  decided  that  the  admiralty  courts  of  the  United  States  have 
jurisdiction  of  collisions  occurring  on  the  high  seas  between  vessels 
owned  by  foreigners  of  different  nationalities;  and  overruled  the  plea 
to  the  juri.sdiction.  The  case  is  now  before  us  on  appeal  from  the 
decree  of  the  circuit  court. 

The  first  question  to  be  considered  is  that  of  the  jurisdiction  of 
the  district  court  to  hear  and  determine  the  cause.  It  is  unneces- 
sary here,  and  would  be  out  of  place,  to  examine  the  question  which 

58 


CONSULAR  CASES 

has  so  often  engaged  the  attention  of  the  common-law  courts,  whether, 
and  in  what  cases,  the  courts  of  one  country  should  take  cognizance 
of  controversies  arising  in  a  foreign  country,  or  in  places  outside  of  the 
jurisdiction  of  any  country.  It  is  very  fully  discussed  in  Mostyn  v. 
Fabrigas,  and  the  notes  thereto  in  1  Smith,  Lead.  Cas.  765;  and  an 
instructive  analysis  of  the  law  will  be  found  in  the  elaborate  argu- 
ments of  counsel  in  the  case  of  the  San  Francisco  Vigilant  Commit- 
tee, (Molony  v.  Dows,  8  Abb.  Pr.  316,)  argued  before  Judge  Daly  in 
New  York,  1859.  We  shall  content  ourselves  with  inquiring  what 
rule  is  followed  by  courts  of  admiralty  in  dealing  with  maritime 
causes  arising  between  foreigners  and  others  on  the  high  seas. 

This  question  is  not  a  new  one  in  these  courts.  Sir  "William  Scott 
had  occasion  to  pass  upon  it  in  1799.  An  American  ship  was  taken 
by  the  French  on  a  voyage  from  Philadelphia  to  London,  and  after- 
wards rescued  by  her  crew,  carried  to  England,  and  libeled  for  sal- 
vage ;-  and  the  court  entertained  jurisdiction.  The  crew,  however, 
though  engaged  in  the  American  ship,  were  British-born  subjects, 
and  weight  was  given  to  this  circumstance  in  the  disposition  of  the 
case.  The  judge,  however,  made  the  following  remarks:  "But,  it  is 
asked,  if  they  were  American  seamen  would  this  court  hold  plea  of 
their  demands  ?  It  may  be  time  enough  to  answer  this  question  when- 
ever the  fact  occurs.  In  the  mean  time,  I  will  say  without  scruple 
that  I  can  see  no  inconvenience  that  would  arise  if  a  British  court  of 
justice  was  to  hold  plea  in  such  a  case;  or,  conversely,  if  American 
courts  were  to  hold  pleas  of  this  nature  respecting  the  merits  of 
British  seamen  on  such  occasions.  For  salvage  is  a  question  of  jus 
gentium,  and  materially  different  from  the  question  of  a  mariner's 
contract,  which  is  a  creature  of  the  particular  institutions  of  the 
country,  to  be  applied  and  construed  and  explained  by  its  o^vn  par- 
ticular rules.  There  might  be  good  reason,  therefore,  for  this  court 
to  decline  to  interfere  in  such  cases,  and  to  remit  them  to  their  own 
iomestic  forum ;  but  this  is  a  general  claim,  upon  the  general  ground 
of  quantum  meruit,  to  be  governed  by  a  sound  discretion,  acting  on 
general  principles;  and  I  can  see  no  reason  why  one  country  should 
be  afraid  to  trust  to  the  equity  of  the  courts  of  another  on  such  a 
question  of  such  nature,  so  to  be  determined."  The  Two  Friends,  1 
C.  Rob.  271,  278. 

The  law  has  become  settled  very  much  in  accord  with  these  views. 
That  was  a  case  of  salvage;  but  the  same  principles  would  seem  to 
apply  to  the  case  of  destroying  or  injuring  a  ship,  as  to  that  of  saving 
it.  Both,  when  acted  on  the  high  seas,  between  persons  of  different 
nationalities,  come  within  the  domain  of  the  general  law  of  nations, 
or  communis  juris,  and  are  -prima  facie  proper  subjects  of  inquiry  in 

59 


CONSULAR  CASES 

any  court  of  admiralty  which  tirst  obtains  jurisdiction  of  the  rescued 
or  offending:  ship  at  the  solicitation  in  justice  of  the  meritorious  or  in- 
jured parties. 

The  same  question  of  jurisdiction  arose  in  another  salvage  case 
which  came  before  this  court  in  1804.  Mason  v.  The  Blaireau,  2 
Cranch,  240.  There  a  French  ship  was  saved  by  a  British  ship,  and 
brought  into  a  port  of  the  United  States ;  and  the  question  of  jurisdic- 
tion was  raised  by  ]\Ir.  IMartin,  of  IMaryland,  who,  however,  did  not 
press  the  point,  and  referred  to  the  observations  of  Sir  William  Scott 
in  The  Two  Friends.  Chief  Justice  Marshall,  speaking  for  the  court, 
disposed  of  the  question  as  follows:  "A  doubt  has  been  suggested," 
said  he,  ''respecting  the  jurisdiction  of  the  court,  and,  upon  a  refer- 
ence to  the  authorities,  the  point  does  not  appear  to  have  been  ever 
settled.  These  doubts  seem  rather  founded  on  the  idea  that  upon 
principles  of  general  policy  this  court  ought  not  to  take  cognizance 
of  a  rase  entirely  between  foreigners,  than  from  any  positive  inca- 
pacity to  do  so.  On  weighing  the  considerations  drawn  from  public 
convenience,  those  in  favor  of  the  jurisdiction  appear  much  to  over- 
balance those  against  it,  and  it  is  the  opinion  of  this  court  that,  what- 
ever doubts  may  exist  in  a  case  where  the  jurisdiction  may  be  ob- 
jected to,  there  ought  to  be  none  where  the  parties  assent  to  it."  In 
that  case,  the  objection  had  not  been  taken  in  the  first  instance,  as 
it  was  in  the  present.  But  we  do  not  see  how  that  circumstance  can 
affect  the  jurisdiction  of  the  court,  however  much  it  may  influence  its 
discretion  in  taking  jurisdiction.  For  circumstances  often  exist  which 
render  it  inexpedient  for  the  court  to  take  jurisdiction  of  controversies 
between  foreigners  in  cases  not  arising  in  the  country  of  the  forum; 
as,  where  they  are  governed  by  the  laws  of  the  country  to  which  the 
parties  belong,  and  there  is  no  difficulty  in  a  resort  to  its  courts;  or 
where  they  have  agreed  to  resort  to  no  other  tribunals.  The  cases  of 
foreign  seamen  suing  for  wages,  or  because  of  ill  treatment,  are  often 
in  this  category;  and  the  consent  of  their  consul,  or  minister,  is  fre- 
quently required  before  the  court  will  proceed  to  entertain  jurisdic- 
tion ;  not  on  the  ground  that  it  has  not  jurisdiction,  but  that,  from 
motives  of  convenience,  or  international  comity,  it  will  use  its  dis- 
cretion whether  to  exercise  jurisdiction  or  not;  and  where  the  voyage 
is  ended,  or  the  seamen  have  been  dismissed  or  treated  with  great 
cruelty,  it  will  entertain  jurisdiction  even  against  the  protest  of  the 
consul.  This  branch  of  the  subject  will  be  found  discussed  in  the 
following  cases:  The  Catharina,  1  Pet.  Adm.  104;  The  Forsoket,  Id. 
197;  The  St.  Oloff,  2  Pet.  Adm.  428;  The  Golubchick,  1  Wm.  Rob. 
143 ;  The  Nina,  L.  R.  2  Adm.  &  Ecc.  44 ;  S.  C.  on  appeal,  L.  R.  2  Priv. 

60 


CONSULAR  CASES 

C.  38 ;  The  Leon  XIII.  8  Prob.  Div.  121 ;  The  Havana,  1  Spr.  402 ; 
The  Becherdass  Ambaidass,  1  Low.  5G9 ;  The  Pawashick,  2  Low.  142. 

Of  course,  if  any  treaty  stipulations  exist  between  the  United 
States  and  the  country  to  which  a  foreign  ship  belongs,  with  regard 
to  the  right  of  the  consul  of  that  country  to  adjudge  controversies 
arising  between  the  master  and  crew,  or  other  matters  occurring  on 
the  ship  exclusively  subject  to  the  foreign  law,  such  stipulations  should 
be  fairly  and  faithfully  observed.  The  Elwine  Kreplin,  9  Blatehf. 
438 ;  reversing,  S.  C.  4  Ben.  413 ;  see  S.  C.  on  application  for  man- 
damus, ex  parte  Newman,  14  Wall.  152.  Many  public  engagements 
of  this  kind  have  been  entered  into  betw^een  our  government  and 
foreign  states.  See  Treaties  and  Conventions,  (Ed.  1871,)  Index,  p. 
1238. 

In  the  absence  of  such  treaty  stipulations,  however,  the  case  of 
foreign  seamen  is  undoubtedly  a  special  one,  when  they  sue  for 
wages  under  a  contract  which  is  generally  strict  in  its  character,  and 
framed  according  to  the  laws  of  the  country  to  which  the  ship  belongs ; 
framed,  also,  with  a  view  to  secure,  in  accordance  with  those  laws, 
the  rights  and  interests  of  the  ship-owners  as  well  as  those  of  master 
and  crew,  as  well  w^hen  the  ship  is  abroad  as  when  she  is  at  home. 
Nor  is  this  special  character  of  the  case  entirely  absent  when  foreign 
seamen  sue  the  master  of  their  ship  for  ill  treatment.  On  general 
principles  of  comity,  admiralty  courts  of  other  countries  will  not  in- 
terfere between  the  parties  in  such  cases  unless  there  is  special  rea- 
son for  doing  so,  and  will  require  the  foreign  consul  to  be  notified, 
and,  though  not  absolutely  bound  by,  will  always  pay  due  respect  to, 
his  wishes  as  to  taking  jurisdiction. 

Not  alone,  however,  in  cases  of  complaints  made  by  foreign  sea- 
men, but  in  other  cases  also,  where  the  subjects  of  a  particular  nation 
invoke  the  aid  of  our  tribunals  to  adjudicate  between  them  and  their 
fellow-subjects  as  to  matters  of  contract  or  tort  solely  affecting  them- 
selves, and  determinable  hy  their  own  laws,  such  tribunals  will  exer- 
cise their  discretion  whether  to  take  cognizance  of  such  matters  or  not. 
A  salvage  case  of  this  kind  came  before  the  United  States  district 
court  of  New  York  in  1848.  The  master  and  crew  of  a  British  ship 
foimd  another  British  ship  near  the  English  coast,  apparently  aban- 
doned, (though  another  vessel  was  in  sight,)  and  took  off  a  portion  of 
her  cargo,  brought  it  to  New  York,  and  libeled  it  for  salvage.  The 
British  consul  and  some  ov,Tiers  of  the  cargo  intervened  and  protested 
against  the  jurisdiction,  and  Judge  Betts  discharged  the  case,  de- 
livered the  property  to  the  owners  upon  security  given,  and  left  the 
salvors  to  pursue  their  remedy  in  the  English  courts.  One  Hundred 
and  Ninety-four  Shawls,  1  Abb.  Adm.  317. 

61 


CONSULAR  CASES 

So  in  a  question  of  oAvnership  of  a  foreign  vessel,  agitated  between 
the  subjects  of  the  nation  to  which  the  vessel  belonged,  the  English 
admiralty,  upon  objection  being  made  to  its  jurisdiction,  refused  to 
interfere,  the  consul  of  such  foreign  nation  having  declined  to  give 
his  consent  to  the  proceedings.  The  Agincourt,  L.  R.  2  Prob.  Div. 
239.  But  in  another  case,  where  there  had  been  an  adjudication  of  the 
oAvnership  under  a  mortgage  in  the  foreign  country,  and  the  consul 
of  that  coimtry  requested  the  English  court  to  take  jurisdiction  of 
the  case  upon  a  libel  filed  by  the  mortgagee,  whom  the  owners  had 
dispossessed,  the  court  took  jurisdiction  accordingly.  The  Evangelis- 
tria,  L.  R.  2  Prob.  Div.  241,  note. 

But,  although  the  courts  will  use  a  discretion  about  assuming 
jurisdiction  of  controversies  between  foreigners  in  cases  arising  be- 
yond the  territorial  jurisdiction  of  the  country  to  which  the  courts 
belong,  yet  where  such  controversies  are  communis  juris, — that  is, 
where  they  arise  under  the  common  law  of  nations, — special  grounds 
should  appear  to  induce  the  court  to  deny  its  aid  to  a  foreign  suitor 
when  it  has  jurisdiction  of  the  ship  or  party  charged.  The  existence 
of  jurisdiction  in  all  such  cases  is  beyond  dispute;  the  only  question 
will  be  whether  it  is  expedient  to  exercise  it.  See  2  Pars.  Shipp.  &  Adm. 
226,  and  cases  cited  in  notes.  In  the  case  of  The  Jerusalem,  2  Gall.  191, 
decided  by  Mr.  Justice  Storj'-,  jurisdiction  was  exercised  in  the  case 
of  a  bottomry  bond,  although  the  contract  was  made  between  sub- 
jects of  the  Sublime  Porte,  and  it  did  not  appear  that  it  was  intended 
that  the  vessel  should  come  to  the  United  States.  In  this  case.  Justice 
Story  examined  the  subject  very  fully,  and  came  to  the  conclusion 
that,  wherever  there  is  a  maritime  lien  on  the  ship,  an  admiralty 
court  can  take  jurisdiction  on  the  principle  of  the  civil  law,  that  in 
proceedings  in  rem  the  proper  forum  is  the  locus  rei  sitae.  He  added : 
"With  reference  therefore  to  what  may  be  deemed  the  public  law  of 
Europe,  a  proceeding  in  rem  may  well  be  maintained  in  our  courts 
where  the  property  of  a  foreigner  is  within  our  jurisdiction.  Nor  am  I 
able  to  perceive  how  the  exercise  of  such  judicial  authority  clashes  with 
any  principles  of  public  policy."  That,  as  we  have  seen,  was  a  case  of 
bottomry,  and  Justice  Story,  in  answer  to  the  objection  that  the 
contract  might  have  been  entered  into  in  reference  to  the  foreign  law, 
after  showing  that  such  law  might  be  proven  here,  said:  "In  respect 
to  maritime  contracts,  there  is  still  less  reason  to  decline  the  jurisdic- 
tion, for  in  almost  all  civilized  countries  these  are  in  general  sub- 
stantially governed  by  the  same  rules."  Justice  Story's  decision  in 
this  case  was  referred  to  by  Dr.  Lushington  with  strong  approbation 
in  the  case  of  The  Golubchick,  1  Wm.  Rob.  143,  decided  in  1840,  and 
was  adopted  a.s  authority  for  his  taking  jurisdiction  in  that  case. 

62 


CONSULAR  CASES 

In  1839  a  case  of  collision  on  the  high  seas  between  two  foreign 
ships  of  different  countries  (the  very  case  now  under  consideration) 
came  before  the  English  admiralty.  The  Johann  Friederich,  1  Wm. 
Rob.  35.  A  Danish  ship  was  sunk  by  a  Bremen  ship,  and  on  the 
latter  being  libeled,  the  respondents  entered  a  protest  against  the 
jurisdiction  of  the  court.  But  jurisdiction  was  retained  by  Dr.  Lush- 
ington,  who,  among  other  things,  remarked:  "An  alien  friend  is  enti- 
tled to  sue  [in  our  courts]  on  the  same  footing  as  a  British-bom  sub- 
ject, and  if  the  foreigner  in  this  case  had  been  resident  here,  and  the 
cause  of  action  had  originated  infra  corpus  comitatus,  no  objection 
could  have  been  taken."  Reference  being  made  to  the  observations 
of  Lord  Stowell  in  cases  of  seamen's  wages,  the  judge  said:  ''All 
questions  of  collision  are  questions  communis  juris;  but  in  cases  of 
mariners'  wages,  whoever  engages  voluntarily  to  serve  on  board  a 
foreign  ship  necessarily  undertakes  to  be  bound  by  the  law  of  the 
country  to  which  such  ship  belongs,  and  the  legality  of  his  claim  must 
be  tried  by  such  law.  One  of  the  most  important  distinctions,  there- 
fore, respecting  cases  where  both  parties  are  foreigners,  is  whether  the 
case  be  communis  juris  or  not.  *  *  *  jf  these  parties  must  wait 
until  the  vessel  that  has  done  the  injury  returned  to  its  own  country, 
their  remedy  might  be  altogether  lost ;  for  she  might  never  return,  and, 
if  she  did,  there  is  no  part  of  the  world  to  which  they  might  not  be 
sent  for  their  redress. 

In  the  subsequent  case  of  The  Griefswald,  Swab.  430,  decided  by 
the  same  judge  in  1859,  which  arose  out  of  a  collision  between  a  Brit- 
ish bark  and  a  Persian  ship  in  the  Dardanelles,  Dr.  Lushington  said : 
"In  cases  of  collision,  it  has  been  the  practice  of  this  country,  and, 
so  far  as  I  know,  of  the  European  states  and  of  the  United  States  of 
America,  to  allow  a  party  alleging  grievance  by  a  collision  to  proceed 
in  rem  against  the  ship  wherever  found,  and  this  practice,  it  is  mani- 
fest, is  most  conducive  to  justice,  because  in  very  many  cases  a  rem- 
edy in  personam  would  be  impracticable." 

The  subject  has  frequently  been  before  our  own  admiralty  courts 
of  original  jurisdiction,  and  there  has  been  but  one  opinion  expressed, 
nam.ely,  that  they  have  jurisdiction  in  such  cases,  and  that  they  will 
exercise  it  unless  special  circumstances  exist  to  show  that  justice  would 
be  better  subserved  by  declining  it.  It  was  exercised  in  two  cases  of 
collision  coming  before  Mr.  Justice  Blatchford,  while  district  judge 
of  the  Southern  District  of  New  York :  The  Jupiter,  1  Ben.  536,  and 
The  Russia,  3  Ben.  471.  In  the  former  case,  the  law  was  taken  very- 
much  for  granted;  in  the  latter,  it  was  tersely  and  accurately  ex- 
pounded, with  a  reference  to  the  principal  authorities.  Other  cases 
might  be  referred  to,  but  it  is  unnecessary  to  cite  them.     The  gen- 

63 


CONSULAR  CASES 

eral  doctrine  on  the  subject  is  recoo:nized  in  the  case  of  The  Maggie 
Hammond,  9  "SVall.  435,  457,  and  is  accurately  stated  by  Chief  Justice 
Taney  in  his  dissenting  opinion  in  Taylor  v,  Carryl,  20  How.  611. 

As  the  assumption  of  jurisdiction  in  such  cases  depends  so  large- 
ly on  the  discretion  of  the  court  of  first  instance,  it  is  necessary  to  in- 
quire how  far  an  appellate  court  should  undertake  to  review  its  action. 
"NVe  are  not  without  authority  of  a  very  high  character  on  this  point. 
In  a  quite  recent  case  in  England,  that  of  The  Leon  XIII.  L.  R.  8 
Prob.  Div,  121,  the  subject  was  discussed  in  the  court  of  appeal.  That 
was  the  case  of  a  Spanish  vessel  libeled  for  the  wages  of  certain 
British  seamen  who  had  shipped  on  board  of  her,  and  the  Spanish 
consul  at  Liverpool  protested  against  the  jurisdiction  of  the  admiralty 
court  on  the  ground  that  the  shipping  articles  were  a  Spanish  con- 
tract, to  be  governed  by  Spanish  law,  and  any  controversy  arising 
thereon  could  only  be  settled  before  a  Spanish  court  or  consul.  Sir 
Robert  Phillimore  held  that  the  seamen  were  to  be  regarded  for  that 
case  as  Spanish  subjects,  and,  under  the  circumstances,  he  considered 
the  protest  a  proper  one,  and  dismissed  the  suit.  The  court  of  appeal 
held  that  the  judge  below  was  right  in  regarding  the  libelants  as 
Spanish  subjects;  and  on  the  question  of  reviewing  his  exercise  of 
discretion  in  refusing  to  take  jurisdiction  of  the  case,  Brett,  M.  R., 
said:  "It  is  then  said  that  the  learned  judge  has  exercised  his  dis- 
cretion wrongly.  What,  then,  is  the  rule  as  regards  this 
point  in  the  court  of  appeal?  The  plaintiffs  must  show  that  the 
judge  has  exercised  his  discretion  on  wrong  principles,  or  that  he 
has  acted  so  absolutely  differently  from  the  view  which  the  court  of 
appeal  holds,  that  they  are  justified  in  saying  he  has  exercised  it 
wrongly.  I  cannot  see  that  any  wrong  principle  has  been  acted  on  by 
the  learned  judge,  or  anything  done  in  the  exercise  of  his  discretion 
so  unjust  or  unfair  as  to  entitle  us  to  overule  his  discretion." 

This  seems  to  us  to  be  a  very  sound  view  of  the  subject ;  and,  act- 
ing on  this  principle,  we  certainly  see  nothing  in  the  course  taken 
by  the  district  court,  in  assuming  jurisdiction  of  the  present  case, 
which  calls  for  animadversion.  Indeed,  where  the  parties  are  not 
only  foreigners,  but  belong  to  different  nations,  and  the  injury  or  sal- 
vage service  takes  place  on  the  high  seas,  there  seems  to  be  no  good 
reason  why  the  party  injured,  or  doing  the  service,  should  ever  be 
denied  justice  in  our  courts.  Neither  party  has  any  peculiar  claim 
to  be  judged  by  the  municipal  law  of  his  own  country,  since  the  case 
is  pre-eminently  one  communis  juris,  and  can  generally  be  more  im- 
partially and  satisfactorily  adjudicated  by  the  court  of  a  third  nation 
having  jurisdiction  of  the  res  or  parties,  than  it  could  be  by  the  courts 
of  either  of  the  nations  to  which  the  litigants  belong.    As  Judge  Deady 

64 


CONSULAR  CASES 

very  justly  said,  in  a  case  before  liim  in  the  district  of  Oregon:  "The 
parties  cannot  be  remitted  to  a  home  forum,  for,  being  subjects  of  dif- 
ferent governments,  there  is  no  such  tribunal.  The  forum  which  is 
common  to  them  both  by  the  jus  gentium  is  any  court  of  admiralty 
within  the  reach  of  whose  process  they  may  both  be  found."  Bern- 
hard  V.  Creene,  3  Sawy.  230,  235. 

As  to  the  law  which  should  be  applied  in  cases  between  parties 
or  ships  of  different  nationalities,  arising  on  the  high  seas,  not  within 
the  jurisdiction  of  any  nation,  there  can  be  no  doubt  that  it  must  be 
the  general  maritime  law,  as  understood  and  administered  in  the 
courts  of  the  country  in  wliich  the  litigation  is  prosecuted.  This  rule 
is  laid  down  in  many  cases ;  among  others  the  following :  The  Johann 
Friederich,  1  Wm.  Rob.  35 ;  The  Dumfries,  Swab.  63 ;  The  Zollverein, 
Id.  96;  The  Grief swald.  Id.  430;  The  Wild  Ranger,  Lush.  553;  The 
Belle,  1  Ben.  320 ;  The  Scotia,  14  Wall  171 ;  The  Scotland,  105  U.  S. 
24,  29 ;  The  Leon,  6  Prob.  Div.  148.  In  the  case  last  cited,  which  was 
that  of  a  British  ship  run  down  by  the  Leon,  a  Spanish  ship,  the 
question  was  specifically  raised  by  the  respondents,  (the  owners  of 
the  Leon,)  who  set  up  in  defense  that  if  there  was  any  negligence 
in  her  navigation,  her  master  and  crew,  and  not  her  owners,  were 
liable  by  the  Spanish  law.  This  defense  was  overruled,  and  the  gen- 
eral maritime  law,  as  understood  and  administered  in  England,  was 
held  to  govern  the  ease;  by  which  law  the  owners  were  held  respon- 
sible. The  same  rule  was  followed  by  this  court  in  The  Scotland,  and 
was  applied  to  the  collision  of  a  British  with  an  American  ship  on  the 
high  seas;  although,  it  is  true,  we  applied  to  that  case  the  rule  of 
limited  liability  established  by  the  act  of  congress,  regarding  that  act 
as  declarative  of  the  general  maritime  law  to  be  administered  by  our 
courts. 

The  rule  requiring  the  application  of  the  general  maritime  law 
to  such  cases  has  some  qualifications,  which,  though  not  affecting  the 
present  case,  should  always  be  borne  in  mind.  One  of  these  qualifi- 
cations is  that  the  persons  in  charge  of  either  ship  will  not  be  open 
to  blame  for  following  the  sailing  regulations  and  rules  of  naviga- 
tion prescribed  by  their  own  government  for  their  direction  on  the 
high  seas,  because  they  are  bound  to  obey  such  regulations.  The 
Scotia,  14  Wall.  170,  184.  Another  qualification  is  that  if  the  mari- 
time law,  as  administered  by  both  nations  to  which  the  respective 
ships  belong,  be  the  same  in  both  in  respect  to  any  matter  of  liability 
or  obligation,  such  law,  if  shown  to  the  court,  should  be  followed  in 
that  matter  in  respect  to  which  they  so  agree,  though  it  differ  from 
the  maritime  law  as  understood  in  the  country  of  the  forum;  for,  as 

65 


CONSULAR  CASES 

respects  the  parties  concerned,  it  is  the  maritime  law  which  they  mu- 
tually acknowledge.    The  Scotland,  105  U.  S.  24,  31. 

The  first  of  these  qualifications  can  rarely  be  called  into  requisi- 
tion at  the  present  day,  since,  for  more  than  20  years  past,  all  the 
principal  maritime  nations  of  the  world  (at  least,  those  whose  ves- 
sels navigate  the  Atlantic  ocean)  have  concurred  in  adopting  a  uni- 
form set  of  rules  and  regulations  for  the  government  of  vessels  on  the 
high  seas.  These  rules  and  regulations  have  become  international, 
and  virtually  a  part  of  the  maritime  law.  The  Scotia,  14  Wall.  171, 
187.  They  will  be  presumed  to  be  binding  upon  foreign  as  well  as 
domestic  ships  unless  the  contrary  is  made  to  appear. 

We  are  then  brought  to  the  question  of  the  merits  of  the  case 
between  the  parties  as  shown  by  the  pleadings  and  finding  of  facts. 
And  this  does  not  require  any  extended  discussion.  It  is  shown  that 
the  bark  had  her  proper  lights  burning  brightly,  visible  on  a  dark 
night,  and  with  a  clear  atmosphere,  at  least  two  miles;  and  that,  in 
character  and  location,  they  conformed  to  the  regulations  of  the  bark's 
nationality,  which  are  the  same  as  those  of  the  British  board  of  trade, 
(or  the  international  rules  before  referred  to;)  that  the  mast-head 
light  of  the  steamer  was  sighted  right  ahead,  distant  about  a  mile; 
that  the  bark  was  kept  steady  on  her  course  until  the  steamer  was  al- 
most upon  her  and  apparently  about  to  run  her  down ;  that  then  the 
order  was  given  to  put  the  helm  hard  a-port ;  that  in  a  few  seconds  the 
steamer's  starboard  light  came  in  view,  and  in  another  instant  she 
struck  the  bark  in  her  port  side,  cutting  her  in  two  obliquely.  In 
all  this  we  see  nothing  that  the  people  in  charge  of  the  bark  did  which 
it  was  not  their  duty  to  do  by  the  international  rules.  It  was  their 
duty  to  keep  her  steady  on  her  course,  and  it  was  the  duty  of  the 
steamer  to  see  the  bark  and  to  avoid  a  collision. 

On  the  other  side,  it  appears  that  the  steamer,  which  was  a  large 
and  powerful  one,  416  feet  long  and  38  feet  beam,  was  coming  towards 
the  bark,  end  on,  at  about  11  knots  an  hour;  that  she  had  a  lookout  on 
the  lee  side  of  her  bridge,  (which  was  over  150  feet  from  her  bow,) 
where  the  officer  in  charge  of  the  deck  also  was,  but  had  no  other  look- 
out on  duty.  The  rest  of  the  watch,  except  the  man  at  the  compass 
and  one  at  the  wheel,  were  underneath  the  turtle-back,  or  top-gallant 
forecastle.  No  lookout  was  on  the  turtle-back,  although  it  would 
have  been  entirely  safe  to  station  one  there.  The  omission  to  do  so 
was  for  the  alleged  reason  that  the  vessel  was  plunging  into  a  head- 
sea,  and  taking  so  much  water  over  her  bows  that  he  would  have  been 
of  no  use  there.  The  bark  was  not  seen  by  those  in  charge  of  the 
steamer  until  just  at  the  instant  of  the  collision ;  yet  objects  could  be 
seen  at  a  distance  of  from  500  yards  to  a  mile,  and  the  port  light  of 

66 


CONSULAR  CASES 

the  bark  was  seen  by  a  steerage  passenger  on  the  steamer,  looking 
out  of  his  room  just  under  the  bridge,  and  was  reported  to  his  room- 
mates long  enough  before  the  collision  to  enable  the  second  steerage 
steward,  who  heard  the  report,  to  go  up  the  companion-ladder,  cross 
the  deck,  and  reach  the  steamer's  rail. 

We  think  that  these  facts  furnished  a  sufficient  ground  for  the 
conclusions  at  which  the  court  arrived,  as  before  rehearsed;  the  sub- 
stance of  which  was  that  the  collision  occurred  by  the  negligence  of 
those  having  charge  of  the  Belgenland,  in  not  seeing  the  bark,  and  in 
not  taking  the  proper  precautions  due  to  such  a  night  and  such  a  sea, 
by  reducing  speed  and  keeping  a  sufficient  lookout. 

It  is  argued  that  there  is  no  express  finding  of  negligence  or  fault, 
as  matter  of  fact,  but  only  as  an  inference  from  the  facts  found.  But 
we  think  that  the  facts  found  furnish  such  conclusive  proof  of  negli- 
gence that  it  may  be  regarded  as  properly  found  among  the  conclu- 
sions of  law  as  a  legal  inference  from  those  facts.  U,  S.  v.  Pugh,  99 
U.  S.  265.  The  counsel  of  the  appellants  suppose  that  the  court  below 
found  the  Belgenland  in  fault  on  the  mere  presumption  arising  from 
the  fact  of  collision,  and  the  primary  duty  of  the  steamship  to  avoid 
it.  But  this  is  not  a  just  view  of  the  decision.  There  was  much  more 
in  the  facts  of  the  case  than  the  existence  of  such  a  presumption,  as 
the  foregoing  rehearsal  of  the  facts  clearly  shows.  The  ability  to  see 
objects  at  a  distance ;  the  fact  that  the  men  in  charge  of  the  steamer 
failed  to  see  the  bark,  while  a  passenger  did  see  her  from  his  room; 
the  fact  that  there  was  but  one  lookout  for  such  a  large  steamer ;  that 
other  lookouts  could  have  been  stationed  on  the  turtle-back;  the  fact 
that  the  speed  was  not  slackened,  and  no  precautions  taken  to  get  a 
better  view  ahead; — these  facts,  in  addition  to  the  presumption  aris- 
ing from  the  steamer's  duty,  present  a  very  different  case  from  that 
supposed  by  the  appellants.  The  decision  of  the  court  must  be  taken 
as  the  collective  result  from  the  whole  case.  It  cannot  be  judged  from 
mere  isolated  expressions  in  the  opinion. 

The  rule  contended  for  by  the  appellants,  that  negligence  and 
fault  must  be  proved,  and  not  presumed,  is  undoubtedly  a  sound  one, 
and  hardly  needs  cases  to  support  it.  But  the  circuit  court  evidently 
did  not  rest  the  case  on  presumption,  but  upon  proof,  from  which 
it  properly  deduced  negligence  on  the  part  of  the  steamship.  At  all 
events,  this  court,  upon  a  careful  consideration  of  the  facts  found, 
is  satisfied  that  there  was  such  negligence,  and  that  it  was  the  cause 
of  the  catastrophe. 

The  decree  of  the  circuit  court  is  affirmed,  with  interest  to  be 
added  to  the  amount  from  the  date  of  the  same.^ 

*  Prom  5  Sup.  a.  Rep.  860. 

67 


CONSULAR  CASES 
BELLO  CORRUNES,  (1821,  U.  S.— Spain) 

6  \Yhcat.  152. 

Johnson,  Supreme  Court. 

•  •******* 

The  attorney-general,  for  the  United  States,  argued,  that  the  offi- 
cers of  the  government  being  in  (156)  possession  of  this  property, 
would  hold  it  as  a  droit  until  some  person  appeared  duly  authorized 
to  claim  it.  The  consul  of  Spain  has  no  authority  to  claim,  in  his 
own  name,  and  in  his  official  character,  the  property  of  persons  to  him 
unknown,  and  by  whom  he  cannot  therefore  have  been  vested  with  a 
special  procuration.  He  is  not  invested  with  a  general  authority  for 
that  purpose,  virute  officii,  nor  is  there  evidence  in  this  particular 
case  that  the  consul  is  the  agent,  consignee,  or  correspondent  of  the 
o^vners,  who  are  sometimes  permitted  to  claim  for  their  principal, 
when  the  latter  is  absent  from  the  country.  Great  public  incon- 
veniences and  mischief  might  (157)  follow  from  allowing  foreign 
consuls,  not  specially  authorized  by  their  own  government,  or  by 
this,  nor  by  the  parties,  to  receive  restitution  of  property,  for  which 
they  may  interpose  a  claim  as  belonging  to  their  fellow-subjects. 
m******** 

(161)  Mr.  "Webster  and  Mr.  Wheaton,  for  the  respondent  and 
claimant,  the  Spanish  consul,  contended,  that  the  consul,  from  the 
necessity  of  the  case,  had  a  right  to  interpose  a  claim  for  the  property 
of  his  fellow-subject,  brought  into  our  ports  in  this  manner.  He  does 
not  claim  as  attorney  in  fact,  but  his  character  is  more  like  an  at- 
torney at  law.  There  is  no  necessity  of  a  special  procuration  from 
those  for  whom  he  claims,  because  it  does  not  follow  that  the  prop- 
erty will  be  actually  delivered  into  his  hands  until  the  respective 
rights  of  the  o^^^lers  are  determined,  and  a  special  authority  produced 
from  them  to  receive  distribution.  There  is  the  more  necessity  for 
permitting  the  consul,  as  the  official  protector  of  the  commercial  rights 
and  interests  of  his  fellow-subjects  in  a  foreign  country,  to  interpose 
a  claim  in  a  case  of  this  nature,  because  the  usual  term  of  a  year  and 
a  day  allowed  in  prize  causes,  where  there  is  no  claim,  would  not  be 
allowed  here,  since  the  property  is  demanded  by  the  captors  under 
their  pretended  commission,  and  if  the  subjects  of  Spain,  residing  at 
a  distance,  and  ignorant  even  of  the  fact  of  the  capture,  were  not  al- 
lowed to  be  represented  by  their  consul,  the  property  would  be  taken 
away  by  the  captors,  and  irrevocably  lost  to  the  original  owners.  It 
will  also  frequently  be  impossible  for  the  consul  to  specify  the  owners 
for  whom  he  claims,  and  he  ought,  therefore,  to  be  allowed  to  file  alle- 
gations claiming  it  for  Spanish  subjects  generally.  The  opinion  of  M. 
Portalis  on  the  case  of  The  Danish  Consul,  proceeds  entirely  upon  the 

68 


CONSULAR  CASES 

peculiar  (162)  regulation  of  France,  which  makes  the  procureur- 
general,  the  official  attorney  of  all  persons  who  are  not  represented 
before  the  tribunals  by  any  special  procuration;  which  would,  of 
course,  render  unnecessary  the  interposition  of  foreign  consuls  in  cases 

where  the  rights  of  their  countrymen  were  involved. 

********* 

Mr.  Justice  Jolmson  delivered  the  opinion  of  the  court:  (Ex- 
tract) To  these  several  claims  it  is  objected  on  behalf  of  the  United 
States,  that  restitution  cannot  be  decreed  to  the  Spanish  vice-consul 
because  he  is  not  in  that  capacity  a  competent  party  in  court  to  as- 
sert the  rights  of  the  individual  subject ;  nor,  in  favor  of  the  captors, 
because  the  privateer  was  originally  fitted  out  in  the  United  States, 
and  is  still  owned  by  American  citizens;  nor,  in  favor  of  the  salvors, 
because  (168)  they  have  forfeited  their  claim  to  salvage  by  spoliation, 
and  an  attempt  to  smuggle. 

As  these  suggestions  open  the  whole  case,  it  shall  be  disposed  of 
by  considering  them  severally  in  their  order,  only  remarking,  en 
passant,  that  though  they  are  all  sustained,  it  would  avail  the  United 
States  nothing:  since,  without  evidence  sufficient  to  sustain  the  crim- 
inal charge,  it  would  only  follow  that  the  proceeds  of  the  property 
libeled  must  lie  in  the  registry  of  the  court  until  a  proper  claimant 
shall  make  his  appearance. 

On  the  first  point  made  by  the  attorney-general,  this  court  feels 
no  difficulty  in  deciding,  that  a  vice-consul  duly  recognized  by  our 
government,  is  a  competent  party  to  assert  or  defend  the  rights  of 
property  of  the  individuals  of  his  nation,  in  any  court  having  juris- 
diction of  causes  affected  by  the  application  of  international  law.  To» 
watch  over  the  rights  and  interests  of  their  subjects,  wherever  the  pur- 
suits of  commerce  may  draw  them,  9r  the  vicissitudes  of  human  af- 
fairs may  force  them,  is  the  great  object  for  which  consuls  are  de- 
puted by  their  sovereigns;  and  in  a  country  where  laws  govern,  and 
justice  is  sought  for  in  courts  only,  it  would  be  a  mockery  to  preclude 
them  from  the  only  avenue  through  which  their  course  lies  to  the  end 
of  their  mission.  The  long  and  universal  usage  of  the  courts  of  the 
United  States,  has  sanctioned  the  exercise  of  this  right,  and  it  is  im- 
possible that  any  evil  or  inconvenience  can  flow  from  it.  Whether  the 
powers  of  the  vice-consul  shall  in  any  instance  extend  to  the  right  to 
receive,  in  his  national  character,  (169)  the  proceeds  of  property 
libeled  and  transferred  into  the  registry  of  a  court,  is  a  question  rest- 
ing on  other  principles.  In  the  absence  of  specific  powers  given  him 
by  competent  authority,  such  a  right  would  certainly  not  be  recog- 
nized. Much,  in  this  respect,  must  ever  depend  upon  the  laws  of  the 
country  from  which,  and  to  which,  he  is  deputed.    And  this  view  of 

69 


CONSULAR  CASES 

the  subject  will  be  found  to  reconcile  the  difficulties  supposed  to 
have  been  presented  by  the  authorities  quoted  on  this  point.  Con- 
sidering, then,  the  original  Spanish  interest  as  legally  represented, 
the  questions  are,  whether  that  interest  is  not  forfeited  to  the  United 
States,  or  superseded  by  the  superior  claims  of  the  capturing  vessel. 

BENITO  ESTENGER,  THE,  (1900,  U.  S.) 

17G  U.  S.  568. 

Fuller,  Supreme   Court. 

(Extract)  IMoreover,  a  United  States  consul  has  no  authority  by 
virtue  of  his  official  station  to  grant  any  license  or  permit  the  exemp- 
tion of  a  vessel  of  any  enemy  from  capture  and  confiscation. 

BENSON  V.  McMAHON,  (1887,  U.  S.— Mexico) 

127  U.  S.  457. 

Miller,  Supreme  Court. 

[Case  in  which  the  Mexican  consul-general  at  New  York  secures 
the  commitment  for  extradition. — Ed.] 

BERNARD  v.  GREENE,  (1874,  U.  S.— Great  Britain) 
3  Sawy.  230;  Fed.  Cases  1,349. 
Deady,  District  Court. 

(235)  (Extract)  As  to  the  protest  of  the  vice-consul,  I  do  not 
find  in  it  any  sufficient  reason  for  declining  the  jurisdiction.  He  is 
not  the  representative  of  the  libellants,  nor  authorized  to  speak  for 
their  governments,  because  they  are  not  British  subjects.  Practically 
they  are  residents  of  and  domiciled  in  this  country.  They  came  here 
from  the  Argentine  Republic  on  a  voyage  which,  as  to  them,  termin- 
ated here.  The  parties  can  not  be  remitted  to  a  home  forum,  for 
being  subjects  of  different  governments  there  is  no  such  tribunal. 
The  forum  which  is  common  to  them  both  by  the  jus  gentium  is  any 
court  of  admiralty  within  the  reach  of  whose  process  they  may  both 
be  found.    Such  is  this  court. 

Neither  is  the  probable  detention  of  the  vessel  any  reason  why 
this  court  should  decline  to  do  justice  to  these  suitors.  If  the  owners 
have  committed  their  vessel  to  the  care  of  a  master  and  mate  who  are 
detained  in  foreign  ports  to  an-(236)swer  for  injuries  done  to  third 
persons,  it  is  their  raisfortime — it  may  be  their  fault — certainly  it  is 
no  fault  of  these  libellants,  and  they  ought  not  to  suffer  for  it  or  be 
delayed  or  hindered  on  account  of  it,  in  seeking  redress  for  their  al- 
leged \vTongs. 

70 


CONSULAR  CASES 

The  court  which  the  consul  is  about  to  organize,  to  inquire  into 
these  matters,  has  not  yet  been  organized,  and  if  it  was  a  case  of  con- 
current jurisdiction,  the  jurisdiction  of  this  court  having  first  attach- 
ed would  be  thenceforth  exclusive.  But  this  consular  court,  or  rather 
"naval  court,"  as  it  is  called  in  the  regulations,  has  no  jurisdiction 
over  this  claim  of  the  libellants  or  power  to  give  them  relief.  It  is 
a  court  or  board  of  inquiry,  convened  for  the  purpose  of  ascertain- 
ing whether  certain  crimes  against  British  law  have  been  committed 
on  the  vessel,  and  if  so,  send  the  accused  parties,  with  the  witnesses, 
home  for  trial.  Suppose  this  naval  court  find  that  the  defendants  were 
guilty  of  an  aggravated  assault  or  assaults  upon  the  libellants,  and  is 
able  to  send  them  home  for  trial,  how  does  that  affect  the  claim  of  the 
libellants?  The  defendants  may  be  required  to  answer  both  civiliter 
and  criminaliter  for  acts  injurious  to  others.  In  the  one  case,  the 
proceeding  is  a  civil  suit  by  the  party  injured  for  damages  for  the 
injury.  In  the  other,  it  is  a  prosecution  by  the  public  to  punish  the 
party  for  the  commission  of  an  offense  against  society.  The  trial  of 
this  suit  in  this  court  in  no  way  "calls  in  question  the  official  action" 
of  such  naval  court,  even  if  it  had  already  taken  action  in  the 
premises.  For  the  purpose  of  which  it  will  inquire  into  the  conduct 
of  the  defendants  towards  these  libellants,  this  court  has  no  right  to 
take  cognizance  of  the  matter.  On  the  other  hand,  concerning  the  re- 
dress sought  to  be  obtained  by  this  suit  against  the  defendants  on  ac- 
count of  such  conduct,  that  tribunal  has  neither  duty  nor  authority. 

In  Patch  V.  Marshall,  1  Curtis,  452,  the  court  took  jurisdiction  of 
a  libel  for  a  tort  by  a  seaman  against  the  master  of  a  British  vessel, 
notwithstanding  the  protest  of  the  British  consul:  "That  an  investi- 
gation of  some  of  the  alleged  causes  of  damages  must  call  in  question 
official  acts  and  conduct  of  a  British  functionary  in  regard  to  Brit- 
ish subjects,  for  which  he  is  responsible  only  to  his  own  government." 
In  passing  upon  this  point,  the  court,  Curtis,  J.  (p.  455),  says:  "It 
is  true  this  court  should  not  call  in  question  a  British  consul  for  his 
official  acts  respecting  the  crew  of  a  British  vessel  in  a  foreign  port. 
*  *  *  But  it  does  not  follow  that  the  conduct  of  the  master  of  such 
a  vessel,  in  procuring  the  official  intervention  of  the  consul,  upon  false 
allegations,  to  the  injury  of  an  American  citizen,  by  imprisonment  in 
a  foreign  jail,  is  not  to  be  here  investigated. ' ' 

Upon  the  whole,  I  think  this  is  a  very  clear  ease  in  favor  of  exer- 
cising the  jurisdiction.  In  the  language  of  Patch  v.  Marshall,  supra, 
"to  require  these  libellants  to  follow  these  defendants  over  the  world, 
until  they  can  find  them  in  a  British  port  would  practically  deprive 
them  of  all  remedy.     I  do  not  think  any  considerations  of  public  con- 

71 


CONSULAR  CASES 

venience,  or  the  comity  extended  by  the  courts  of  admiralty  of  one 
country  to  those  of  another,  have  any  applicability  to  such  a  ease." 
The  protest  and  exceptions  are  overruled. 

BETTY  CATHCART,  THE,  (1799,  Great  Britain) 

1  Rob.  C.  220. 

Sir  Williayn  Scott,  High  Court  of  Admiralty. 

(221)  (Extract)  The  ship  had  been  a  British  vessel  taken  by  the 
French  and  carried  into  an  American  port.  The  British  consul  in- 
terposed, and  the  subordinate  court  in  America  determined,  in  perfect 
consistence  with  the  laws  of  neutrality,  that  it  was  a  capture  unlaw- 
fully made  in  violation  of  their  particular  neutrality,  and  restored  the 
vessel.  An  appeal  was  prosecuted  to  the  superior  court,  and  it  was 
agreed,  to  prevent  the  destruction  of  the  vessel  by  its  rotting  in  a  har- 
bor during  the  pendency  of  this  appeal,  that  the  ship  should  be  sold 
and  the  proceeds  should  remain  to  abide  the  event  of  the  ultimate  ad- 
judication. In  this  state  the  vessel  was  purchased  by  a  Mr.  Penman 
of  Charles-Town,  according  to  his  declaration,  for  the  former  owners, 
if  they  elected  to  take  it ;  otherwise  for  Simpson  and  Davidson,  British 
merchants,  correspondents  of  his  in  London,  in  whose  names  and  on 
whose  account  it  was  actually  purchased.  Mr.  Penman  then  ap- 
plied, by  means  of  the  British  consul,  who  witnesses  the  whole  of  the 
transaction,  to  the  French  consul  for  the  ship's  register  and  other 
documents.  The  French  consul  refused.  Application  was  made  to 
the  American  court  which  had  decreed  the  sale,  to  compel  a  delivery 
of  the  British  papers,  but  the  American  court  declined  interfering  to 
that  effect,  upon  the  application  of  the  British  consul,  who  certifies 
the  fact,  and  puts  his  certificate  on  board,  stating  what  had  passed, 
and  that  the  ' '  ship  is  and  continues  a  British  bottom,  and  that  he  does 
this  for  the  security  of  British  owners."  The  ship,  thus  deprived  of 
her  papers,  sails     *     *     *. 

BIRD,  EX  PARTE,  (1802,  Great  Britain) 

2  D.  M.  ic  (}.  9(J3;  42  Eng.  Eep.  1148. 

Lord  Justices,  Chancery. 

•  *#****** 

A  question  arose  in  this  case  as  to  the  sufficiency  of  an  affidavit 
under  the  243d  section  of  the  Bankrupt  Law  Consolidation  Act,  1849, 
which,  after  providing  that  affidavits  to  be  made  or  used  in  matters 
of  bankruptcy,  or  in  any  matter  or  proceeding  whatever  under  the 
act,  shall  and  may  be  sworn  in  England,  Scotland,  or  Ireland,  as 
there  mentioned,  proceeds  thus:  "or  elsewhere,  before  a  magistrate 

72 


CONSULAR  CASES 

and  attested  by  a  notary,  or  before  a  British  minister,  consul,  or  vice- 
consul.  ' ' 

The  affidavit  purported  to  be  sworn  before  a  magistrate  at  New 
York,  and  there  was  a  notarial  certificate  that  the  gentleman  described 
in  the  jurat  as  a  magistrate  actually  filled  that  office. 

Mr.  Hugh  Hill  and  Mr.  Selwyn,  for  the  respondent,  objected  that 
the  affidavit  was  not  ''attested"  by  a  notary,  inasmuch  as  it  did  not 
appear  that  the  notary  was  present  when  the  affidavit  was  sworn. 

Mr,  Rolt  and  Mr.  Eddis,  for  the  appellant. 

THE  LORD  JUSTICE  KNIGHT  BRUCE  thought  the  attesta- 
tion sufficient. 

THE  LORD  JUSTICE  LORD  CRANWORTH  asked  if  there  was 
any  settled  practice  of  authority  upon  the  point;  (964)  and  being 
informed  that  none  had  been  found,  his  Lordship  said  that  if  there 
were  no  precedent  the  court  would  make  one  in  this  case.  That  such 
a  form  of  attestation  was  sufficient  appeared  plain.  The  legislature 
intended  that  affidavits  should  be  sworn  before  some  functionary 
duly  authorized  to  receive  them,  and  that  where  such  functionary  was 
a  foreign  functionary,  the  fact  of  his  authority  should  be  attested  by 
the  certificate  of  a  notary.  Where  affidavits  were  made  before  a 
British  minister,  consul,  vice-consul,  no  notarial  certificate  was  re- 
quied;  and  the  reason  for  that  was,  because  the  fact  of  such  persons 
filling  their  respective  offices  was  easily  capable  of  proof,  independent- 
ly of  any  material  attestation  or  certificate. 

BISCHOFFSCHEIM  v.  BALTZER,  (1882,  U.  S.) 
10  Fed.  Rep.  1, 

Blatchford,  Circuit  Court. 

(Extract)  Under  sections  863  and  1750  of  the  Revised  Statutes, 
depositions  de  bene  esse  in  civil  causes  may  be  taken  in  a  foreign  coun- 
try by  any  secretary  of  legation  or  consular  officer. 

BIXBY  V.  JANSSEN,  (1869,  U.  S.) 

6  Blatchf.  315;  Fed.  Cases  1,452. 

Blatchford,  Circuit  Court. 

This  was  an  action  on  contract,  tried  before  the  court  without  a 
jury. 

Spaulding  &  Ricliardson,  for  the  plaintiff. 

Henry  D.  Lapaugh,  for  the  defendants. 

BATCHFORD,  J.    I  do  not  think,  on  the  evidence,  that  the  firm 

73 


CONSULAR  CASES 

of  Janssen.  Schmidt  &  Ruperti  is  liable  to  the  plaintiff  for  the  claim 
sued  for.  I  think,  however,  that  the  persons  who  composed  the  form- 
er firm  of  J.  W.  Schmidt  &  Co.,  on  the  23d  of  February,  1865,  are  lia- 
ble for  it.  Those  persons  were  John  W.  Schmidt,  Edward  Vonder- 
heydt,  and  the  defendant  Janssen.  The  defendant  Schmidt,  who  is 
consul  in  the  United  States  for  the  kingdom  of  Saxony,  was  not  a 
member  of  the  firm  of  J.  "W,  Schmidt  &  Co.  on  the  23d  of  February, 
1865.  He  became  such  in  March,  1865.  It  is  only  by  reason  of  his 
being  a  foreign  consul  that  this  court  has  any  jurisdiction  of  this  ac- 
tion. The  defendant  Janssen  was  a  member  of  the  firm  of  J.  W. 
Schmidt  &  Co.  on  the  23d  of  Februar>%  1865,  and,  as  such,  is  liable 
to  the  plaintiff  for  the  claim  sued  for,  according  to  the  written  mem- 
orandum of  that  date ;  but,  as  the  firm  of  Janssen,  Schmidt  &  Ruperti, 
as  a  firm,  is  not  liable  for  the  claim,  and  there  can  be  no  recovery  in 
this  suit  against  the  defendant  Schmidt,  the  consul,  the  jurisdiction 
of  the  court  to  give  judgment  against  Janssen  fails,  he  having  been 
properly  sued  in  this  court  only  as  a  copartner  with  the  defendant 
Schmidt,  and  being,  in  fact,  sued  only  as  a  member  of  the  firm  of 
Janssen,  Schmidt  &  Ruperti,  and  his  liability  as  such  copartner  not 
being  established.  Janssen,  though  liable,  as  a  member  of  the  firm 
of  J.  W.  Schmidt  &  Co.  on  the  23d  of  February,  1865,  for  this  claim, 
must  be  sued  for  it  in  a  state  court. 

I,  therefore,  find  for  the  defendants. 

BLANCHE  V.  RANGE!,  see  The  Nina. 
BORS  v.  PRESTON,  (1884,  U.  S.) 

Ill  U.  S.  2.52;  4  Sup.  Ct.  Rep.  407. 

Harlan,  Supreme  Court. 

In  error  to  the  circuit  court  of  the  United  States  for  the  Southern 
District  of  New  York. 

HARLAN,  J.  This  action  was  brought  in  the  circuit  court  of  the 
United  States  for  the  Southern  District  of  New  York.  The  plaintiff, 
Preston,  is  a  citizen  of  that  state,  while  the  defendant  is  the  consul, 
at  the  port  of  New  York,  for  the  kingdom  of  Norway  and  Sweden. 
The  object  of  the  action  is  to  recover  damages  for  the  alleged  unlawful 
conversion  by  defendant,  to  his  own  use,  of  certain  articles  of  mer- 
chandise. The  answer  denies  the  material  allegations  of  the  com- 
plaint, and,  in  addition,  by  way  of  counter-claim,  asks  judgment 
against  the  plaintiff  for  certain  sums.  To  the  counter-claim  a  replica- 
tion was  filed,  and  a  trial  had  before  a  jury,  which  resulted  in  a 

74 


CONSULAR  CASES 

verdict  in  favor  of  plaintiff  for  $7,313.10.  For  that  amount  judgment 
was  entered  against  the  defendant. 

The  assignments  of  error  question  the  jurisdiction  of  the  circuit 
court,  under  the  constitution  and  the  laws  of  the  United  States,  to 
hear  and  determine  any  suit  whatever  brought  against  the  consul  of 
a  foreign  government.  Some  reference  was  made  in  argument  to  the 
fact  that  the  defendant  did  not  in  the  court  below  plead  exemption, 
by  virtue  of  his  official  character,  from  suit  in  a  circuit  court  of  the 
United  States.  To  this  it  is  sufficient  to  reply  that  this  court  must, 
from  its  own  inspection  of  the  record,  determine  whether  a  suit  against 
a  person  holding  the  position  of  consul  of  a  foreign  government  is  ex- 
cluded from  the  jurisdiction  of  the  circuit  courts.  In  cases  of  which 
the  circuit  courts  may  take  cognizance  only  by  reason  of  the  citizen- 
ship of  the  parties,  this  court,  as  its  decisions  indicate,  has,  except 
under  special  circumstances  declined  to  express  any  opinion  upon  the 
merits  on  appeal  or  writ  of  error  where  the  record  does  not  affirma- 
tively show  jurisdiction  in  the  court  below;  this,  because  the  courts 
of  the  Union,  being  courts  of  limited  jurisdiction,  the  presumption,  in 
every  stage  of  the  cause,  is  that  it  is  without  their  jurisdiction,  unless 
the  contrary  appears  from  the  record.  Grace  v.  American  Ins.  Co. 
109  U.  S.  283 ;  S.  C.  3  Sup.  Ct.  Rep.  207 ;  Robertson  v.  Cease,  97  U. 
S.  646.  Much  more,  therefore,  will  we  refuse  to  determine  on  the 
merits,  and  will  reverse  on  the  point  of  jurisdiction,  cases  where  the 
record  shows  affirmatively  that  they  are  of  a  class  which  the  statute 
excludes  altogether  from  the  cognizance  of  the  circuit  courts.  If 
this  were  not  so  it  would  be  in  the  power  of  the  parties,  by  negli- 
gence or  design,  to  invest  those  courts  with  a  jurisdiction  expressly 
denied  to  them.  To  these  considerations  it  may  be  added  that  the 
exemption  of  the  consul  of  a  foreign  government  from  suit  in  par- 
ticular courts  is  the  privilege,  not  of  the  person  who  happens  to  fill 
that  office,  but  of  the  state  or  government  he  represents.  It  was  so 
decided  in  Davis  v.  Packard,  7  Pet.  284.  While  practically  it  may 
be  of  no  consequence  whether  original  jurisdiction  of  suits  against 
consuls  of  foreign  governments  is  conferred  upon  one  court  of  the 
United  States  rather  than  another,  it  is  sufficient  that  the  legislative 
branch  of  the  government  has  invested  particular  courts  with  juris- 
diction in  the  premises. 

We  proceed,  then,  to  inquire  whether,  imder  the  constitution  and 
laws  of  the  United  States,  a  circuit  court  may,  imder  any  circum- 
stances, hear  and  determine  a  suit  against  the  consul  of  a  foreign  gov- 
ernment. In  other  words,  whether  other  courts  have  been  invested 
with  exclusive  jurisdiction  of  such  suits.  The  constitution  declares 
that  "the  judicial  power  of  the  United  States  shall  extend     *     *     * 

75 


CONSULAR  CASES 

to  all  cases  affecting  ambassadors  or  other  public  ministers  and  con- 
suls;" to  controversies  between  citizens  of  a  state  and  foreign  citi- 
zens or  subjects;  that  "in  all  cases  affecting  ambassadors,  other  pub- 
lic ministers  and  consuls,  *  *  *  i\^q  supreme  court  shall  have 
original  jurisdiction;"  and  that  in  all  other  cases  previously  men- 
tioned in  the  same  clause,  "the  supreme  court  shall  have  appellate 
jurisdiction,  both  as  to  law  and  fact,  with  such  exceptions  and  imder 
such  regulations  as  the  congress  shall  make."  The  judiciary  act  of 
1789  invested  the  district  courts  of  the  United  States  with  "jurisdic- 
tion, exclusively,  of  the  courts  of  the  several  states,  of  all  suits  against 
consuls  or  vice-consuls,"  except  for  offenses  of  a  certain  character; 
this  court  with  "original,  but  not  exclusive  jurisdiction  of  all  suits 
*  •  *  in  which  a  consul  or  vice-consul  shall  be  a  party;"  and  the 
circuit  courts  with  jurisdiction  of  civil  suits  in  which  an  alien  is  a 
party.  1  St.  76-80.  In  this  act  we  have  an  affirmance  by  the  first 
congress — many  of  whose  members  participated  in  the  Convention 
which  adopted  the  constitution,  and  were  therefore  conversant  with 
the  purposes  of  its  framers — of  the  principle  that  the  original  juris- 
diction of  this  court  of  cases  in  which  a  consul  or  vice-consul  is  a 
party,  is  not  necessarily  exclusive,  and  that  the  subordinate  courts 
of  the  Union  may  be  invested  with  jurisdiction  of  cases  affecting  such 
representatives  of  foreign  governments.  On  a  question  of  constitu- 
tional construction,  this  fact  is  entitled  to  great  weight.  Very  early 
after  the  passage  of  that  act  the  case  of  U.  S.  v.  Ravara,  2  Dall.  297, 
was  tried  in  the  circuit  court  of  the  United  States  for  the  district  of 
Pennsylvania,  before  Justices  "Wilson  and  Iredell,  of  this  court,  and 
the  district  judge.  It  was  an  indictment  against  a  consul  for  a  mis- 
demeanor of  which,  it  was  claimed,  the  circuit  court  had  jurisdiction 
under  the  eleventh  section  of  the  judiciary  act,  giving  circuit  courts 
"exclusive  cognizance  of  all  crimes  and  offenses  cognizable  imder  the 
authority  of  the  United  States,"  except  where  that  act  "otherwise 
provides,  or  the  laws  of  the  United  States  shall  otherwise  direct,  and 
concurrent  jurisdiction  M'ith  the  district  courts  of  the  crimes  and 
offenses  cognizable  therein."  In  behalf  of  the  accused  it  was  con- 
tended that  this  court,  in  virtue  of  the  constitutional  grant  to  it  of 
original  jurisdiction  in  all  cases  affecting  consuls,  had  exclusive  jur- 
isdiction of  the  prosecution  again.st  him.  Mr.  Justice  "Wilson  and  the 
district  judge  concurred  in  overruling  this  objection.  They  were  of 
opinion  that  although  the  constitution  invested  this  court  with  original 
jurisdiction  in  cases  affecting  consuls,  it  was  competent  for  congress 
to  confer  concurrent  jurisdiction  in  those  cases  upon  such  inferior 
courts  as  might  by  law  be  establi.shed.  Mr.  Justice  Iredell  dissented, 
upon  the  ground  that  the  word  "original,"  in  the  clause  of  the 

76 


CONSULAR  CASES 

constitution  under  examination,  meant  exclusive.  The  indictment  was 
sustained,  and  the  defendant  upon  the  final  trial,  at  which  Chief  Jus- 
tice Jay  presided,  was  found  guilty.  He  was  subsequently  pardoned 
on  condition  that  he  would  surrender  his  commission  and  exequatur. 

In  U.  S.  V.  Ortega,  11  Wheat.  467,— which  was  a  criminal  prose- 
cution, in  a  circuit  court  of  the  United  States,  for  the  offense  of  of- 
fering personal  violence  to  a  public  minister,  contrary  to  the  law  of  na- 
tions and  the  act  of  congress, — one  of  the  questions  certified  for  deci- 
sion was  whether  the  jurisdiction  conferred  by  the  constitution  upon 
this  court,  in  cases  affecting  ambassadors  or  other  public  ministers, 
and  consuls,  was  not  only  original,  but  exclusive  of  the  circuit  courts. 
But  its  decision  was  waived  and  the  case  determined  upon  another 
ground.  Of  that  case  it  was  remarked  by  Chief  Justice  Taney,  in 
Gittings  V.  Crawford,  Taney,  Dec.  5,  that  an  expression  of  opinion 
upon  that  question  would  not  have  been  waived  had  the  court  re- 
garded it  as  settled  by  previous  decisions. 

In  Da\as  v.  Packard,  uhi  supra,  upon  error  to  the  court  for  the 
correction  of  errors  of  the  state  of  New  York,  the  precise  question  pre- 
sented was  whether,  under  the  constitution  and  laws  of  the  United 
States,  a  state  court  could  take  jurisdiction  of  civil  suits  against  for- 
eign consuls.  It  was  determined  in  the  negative  upon  the  ground  that, 
by  the  ninth  section  of  the  act  of  1789,  jurisdiction  was  given  to  the 
district  courts  of  the  United  States,  exclusively  of  the  courts  of  the 
several  states,  of  all  suits  against  consuls  and  vice-consuls,  except  for 
certain  offenses  mentioned  in  the  act.  The  jurisdiction  of  the  state 
courts  was  denied  because — and  no  other  reason  was  assigned — jur- 
isdiction had  been  given  to  the  district  courts  of  the  United  States 
exclusively  of  the  former  courts, — a  reason  which,  probably,  would 
not  have  been  given  had  the  court,  as  then  organized,  supposed  that 
the  constitutional  grant  of  original  jurisdiction  to  this  court,  in  all 
cases  affecting  consuls,  deprived  congress  of  power  to  confer  concur- 
rent original  jurisdiction,  in  such  cases,  upon  the  subordinate  courts 
of  the  Union.  It  is  not  to  be  supposed  that  the  clause  of  the  con- 
stitution giving  original  jurisdiction  to  this  court,  in  cases  affecting 
consuls,  was  overlooked,  and  therefore  the  decision  in  that  case  may 
be  regarded  as  an  affirmance  of  the  constitutionality  of  the  act  of 
1789,  giving  original  jurisdiction  in  such  cases  also  to  district  courts 
of  the  United  States.  And  it  is  a  significant  fact  that  in  the  decision 
in  Davis  v.  Packard,  Chief  Justice  Marshall  concurred,  although  he 
had  delivered  the  judgments  in  Marbury  v.  Bladison,  1  Cranch,  137, 
1;  Cohens  v.  Virginia,  6  Wheat.  264;  and  Osborn  v.  U.  S.  Bank.  9 
Wheat.  738,  some  of  the  general  expressions  in  which  are  not  infre- 
quently cited  in  support  of  the  broad  proposition  that  the  jurisdiction 

77 


CONSULAR  CASES 

of  this  court  is  made  by  the  constitution  exclusive  of  every  other 
court,  in  all  cases  of  which  by  that  instrument  it  is  given  original 
jurisdiction.  It  may  also  be  obsen'ed  that  of  the  seven  justices  who 
concurred  in  the  judgment  in  Davis  v.  Packard,  five  participated  in 
the  decision  of  Osborn  v.  U.  S.  Bank. 

In  St.  Luke's  Hospital  v.  Barclay,  3  Blatchf.  259,  which  was  a 
suit  in  equity  in  the  circuit  court  of  the  United  States  for  the  South- 
em  district  of  New  York,  the  question  was  distinctly  raised  whether 
the  consular  character  of  the  alien  defendant  exempted  him  from  the 
jurisdiction  of  the  circuit  courts.  The  jurisdiction  of  the  circuit 
court  was  maintained,  the  opinion  of  the  courts  being  that  the  juris- 
diction of  the  district  court  was  made  by  statute  exclusive  only  of  the 
state  courts,  and  that  under  the  eleventh  section  of  the  act  of  1789, 
the  defendant  being  an  alien, — no  exception  being  made  therein  as 
to  those  who  were  consuls, — was  amendable  to  a  suit  in  the  circuit 
court  brought  by  a  citizen.  Subsequently  the  question  was  reargu- 
ed before  Mr.  Justice  Nelson  and  the  district  judge,  and  the  proposi- 
tion was  pressed  that  the  defendants  could  not  be  sued  except  in 
this  court  or  in  some  district  court.  But  the  former  ruling  was 
sustained. 

In  Graham  v.  Stucken,  4  Blatchf.  50,  the  same  question  was 
carefully  considered  by  Mr.  Justice  Nelson,  who  again  held  that  the 
constitutional  grant  of  original  jurisdiction  to  this  court  in  cases  af- 
fecting consuls;  the  legislative  grant  in  the  act  of  1789  to  this  court 
of  original  but  not  exclusive  jurisdiction  of  suits  in  which  a  consul 
or  vice-consul  is  a  party;  and  the  legislative  grant  of  jurisdiction  to 
the  district  courts,  exclusive  of  the  state  courts,  of  suits  against  con- 
suls or  vice-consuls. — did  not  prevent  the  circuit  courts,  which  had 
jurisdiction  of  suits  to  which  an  alien  was  a  party,  from  taking 
cognizance  of  a  suit  brought  by  a  citizen  against  an  alien,  albeit  the 
latter  was  at  the  time  the  consul  of  a  foreign  government. 

In  Gittings  v.  Crawford,  Taney,  Dec.  1,  which  was  a  suit  upon 
a  promissory  note  brought  in  the  district  court  of  the  United  States 
for  Maryland,  by  a  citizen  of  that  state  against  a  consul  of  Great 
Britain,  the  point  was  made  in  the  circuit  court  on  writ  of  error  that 
by  the  constitution  of  the  United  States  this  court  had  exclusive 
jurisdiction  of  such  cases.  The  former  adjudications  of  this  and 
other  courts  of  the  Union  were  there  examined  and  the  conclusion 
reached — and  in  that  conclusion  we  concur — that  as  congress  was 
not  expressly  prohibited  from  giving  original  jurisdiction,  in  cases 
affecting  consuls  to  the  inferior  judicial  tribunals  of  the  United 
States,  neither  public  policy  nor  convenience  would  justify  the  court 
in  implying  such  prohibition,  and  upon  such  implication  pronounce 

78 


CONSULAR  CASES 

the  act  of  1789  to  be  unconstitutional  and  void.  Said  Chief  Justice 
Taney:  "If  the  arrangement  and  classification  of  the  subjects  of 
jurisdiction  into  appellate  and  original,  as  respects  the  supreme 
court,  do  not  exclude  that  tribunal  from  appellate  power  in  the 
cases  where  original  jurisdiction  is  granted,  can  it  be  right,  from  the 
same  clause,  to  imply  words  of  exclusion  as  respects  other  courts 
whose  jurisdiction  is  not  there  limited  or  prescribed,  but  left  for  the 
future  regulation  of  congress?  The  true  rule  in  this  case  is,  I  think, 
the  rule  which  is  constantly  applied  to  ordinary  acts  of  legislation, 
in  which  the  grant  of  jurisdiction  over  a  certain  subject-matter  to 
one  court  does  not,  of  itself,  imply  that  that  jurisdiction  is  to  be 
exclusive.  In  the  clause  in  question,  there  is  nothing  but  mere  af- 
firmative words  of  grant,  and  none  that  import  a  design  to  exclude 
the  subordinate  jurisdiction  of  other  courts  of  the  United  States  on 
the  same  subject-matter."  Taney,  Dec.  9.  After  alluding  to  the 
fact  that  the  position  of  consul  of  a  foreign  government  is  some- 
times filled  by  one  of  our  own  citizens,  he  observes :  "It  could  hardly 
have  been  the  intention  of  the  statesmen  who  framed  our  constitu- 
tion to  require  that  one  of  our  citizens  who  had  a  petty  claim  of  even 
less  than  five  dollars  against  another  citizen  who  had  been  clothed 
by  some  foreign  government  with  the  consular  office,  should  be  com- 
pelled to  go  into  the  supreme  court  to  have  a  jury  summoned  in  order 
to  enable  him  to  recover  it ;  nor  could  it  have  been  intended  that  the 
time  of  that  court,  with  all  its  high  duties  to  perform,  should  be 
taken  up  with  the  trial  of  every  petty  offense  that  might  be  committed 
by  a  consul  in  any  part  of  the  United  States ;  that  consul,  too,  being 
often  one  of  our  own  citizens." 

Such  was  the  state  of  the  law  when  the  Revised  Statutes  of  the 
United  States  went  into  operation.  By  section  563  it  is  provided 
that  "the  district  courts  shall  have  jurisdiction  *  *  *  of  all 
suits  against  consuls  or  vice-consuls,"  except  for  certain  offenses;  by 
section  629,  that  "the  circuit  courts  shall  have  original  jurisdiction" 
of  certain  classes  of  cases,  among  which  are  civil  suits  in  which  an 
alien  is  a  party;  by  section  687,  that  this  court  shall  have  "original 
but  not  exclusive  jurisdiction  of  all  suits  *  *  *  in  which  a  con- 
sul or  vice-consul  is  a  party;"  and  by  section  711,  that  the  jurisdic- 
tion vested  in  the  courts  of  the  United  States  in  the  cases  and  pro- 
ceedings there  mentioned — among  which  (paragraph  8)  are  "suits 
against  ambassadors  or  other  public  ministers  or  their  domestics,  or 
domestic  servants,  or  against  consuls,  or  vice-consuls" — shall  be  ex- 
elusive  of  the  courts  of  the  several  states.  But  by  the  act  of  February 
18,  1875,  that  part  of  section  711  last  quoted  was  repealed,  (Supp. 
Rev.  St.  p.  138,  par.  18,)   so  that,  by  the  existing  law,  there  is  no 

79 


CONSULAR  CASES 

statnton'  provision  wliioli,  in  terms,  makes  the  jurisdiction  of  the 
courts  of  the  United  States  exclusive  of  the  state  courts  in  suits 
against  consuls  or  vice-consuls.  It  is  thus  seen  that  neither  the  con- 
stitution nor  any  act  of  congress  defining  the  powers  of  the  courts 
of  the  United  States  has  made  the  jurisdiction  of  this  court,  or  of  the 
district  courts,  exclusive  of  the  circuit  courts  in  suits  brought  against 
persons  who  hold  the  position  of  consul,  or  in  suits  or  proceedings  in 
which  a  consul  is  a  party.  The  jurisdiction  of  the  latter  courts,  con- 
ferred without  qualification,  of  a  controversy  between  a  citizen  and 
an  alien,  is  not  defeated  by  the  fact  that  the  alien  happens  to  be  the 
consul  of  a  foreign  government.  Consequently  the  jurisdiction  of  the 
court  below  cannot  be  questioned  upon  the  ground  simply  that  the 
defendant  is  the  consul  of  the  kingdom  of  Norway  and  Sweden. 

But  as  this  court  and  the  district  courts  are  the  only  courts  of 
the  Union  which,  imder  the  constitution  or  the  existing  statutes,  are 
invested  with  jurisdiction  without  reference  to  the  citizenship  of  the 
parties,  of  suits  against  consuls,  or  in  which  consuls  are  parties,  and 
since  the  circuit  court  was  without  jurisdiction,  unless  the  defendant 
is  an  alien  or  a  citizen  of  some  state  other  than  New  York,  it  re- 
mains to  consider  whether  the  record  shows  him  to  be  either  such 
citizen  or  an  alien.  There  is  neither  averment  nor  evidence  as  to  his 
citizenship,  unless  the  conceded  fact  that  he  is  the  consul  of  a  foreign 
government  is  to  be  taken  as  adequate  proof  that  he  is  a  citizen  or 
subject  of  that  government.  His  counsel  insist  that  the  consul  of 
a  foreign  covmtry,  discharging  his  duties  in  this  country,  is,  in  the 
absence  of  any  contrary  evidence,  to  be  presumed  in  law  to  be  a  citi- 
zen or  subject  of  the  country  he  represents.  This  presumption,  it  is 
claimed,  arises  from  the  nature  of  his  office  and  the  character  of  the 
duties  he  is  called  upon  to  discharge.  But,  in  our  opinion,  the  prac- 
tice of  the  different  nations  does  not  justify  such  presumption. 
"Though  the  functions  of  consul,"  says  Kent,  "would  seem  to  require 
that  he  should  not  be  a  subject  of  the  state  in  which  he  resides,  yet 
the  practice  of  the  maritime  powers  is  quite  lax  on  this  point,  and  it 
is  usual,  and  thought  most  convenient,  to  appoint  subjects  of  the 
foreign  country  to  be  consuls  at  its  ports."  1  Kent,  44.  In  Gittings 
v.  Crawford,  uhi  supra,  it  was  said  by  Chief  Justice  Taney  that,  "in 
this  country,  as  well  as  others,  it  often  happens  that  the  consular 
oflRce  is  conferred  by  a  foreign  government  on  one  of  our  own  citi- 
zens." It  is  because  of  this  practice  that  the  question  has  frequently 
arisen  as  to  the  extent  to  which  citizens  of  a  country,  exercising  the 
functions  of  foreign  consuls,  are  exempt  from  the  political  and  muni- 
cipal duties  which  are  imposed  upon  their  fellow  citizens.  Halleck, 
Int.  Law,  (London  Ed.,)  vol.  1,  c.  11,  §  10  et  seq.     In  an  elaborate 

80 


CONSULAR  CASES 

opinion  by  Attorney  General  Gushing,  addressed  to  Secretary  Marcy, 
the  question  was  considered  whether  citizens  of  the  United  States, 
discharging  consular  functions  here  by  appointment  of  foreign  gov- 
ernments, were  subject  to  service  in  the  militia  or  as  jurors.  8  Op. 
Atty.  Gen.  169.  It  was,  perhaps,  because  of  the  difficulties  arising  in 
determining  questions  of  this  character  that  many  of  the  treaties 
between  the  United  States  and  other  countries  define  with  precision 
the  privileges  and  exemptions  given  to  consuls  of  the  respective  na- 
tions— exemptions  from  public  service  being  accorded,  as  a  general 
rule,  only  to  a  consul  who  is  a  citizen  or  subject  of  the  country  he 
represents.     Rev.  St.  D.  C.  Pub.  Treaties,  index,  tit.  "Consuls." 

But  it  seems  unnecessary  to  pursue  the  subject  further.  When 
the  jurisdiction  of  the  circuit  court  depends  upon  the  alienage  of 
one  of  the  parties,  the  fact  of  alienage  must  appear  affirmatively 
either  in  the  pleadings  or  elsewhere  in  the  record.  Brown  v.  Keene, 
8  Pet.  115 ;  Bingham  v.  Cabot,  3  Dall.  382 ;  Capron  v.  Van  Noorden, 
2  Cranch,  126;  Robertson  v.  Cease,  supra.  It  cannot  be  inferred, 
argumentatively,  from  the  single  circumstance  that  such  person  holds 
and  exercises  the  office  of  consul  of  a  foreign  government.  Neither 
the  adjudged  cases  nor  the  practice  of  this  government  prevent  an 
American  citizen — not  holding  an  office  of  profit  or  trust  under  the 
United  States — from  exercising  in  this  country  the  office  of  consul 
of  a  foreign  government. 

Our  conclusion  is  that,  as  it  does  not  appear  from  the  record 
that  the  defendant  is  an  alien,  and  since  it  is  consistent  with  the 
record  that  the  defendant  was  and  is  a  citizen  of  the  same  state  with 
the  plaintiff,  the  record,  as  it  now  is,  does  not  present  a  case  which 
the  circuit  court  had  authority  to  determine.  Without,  therefore, 
considering  the  merits  of  this  cause,  the  judgment  must  be  reversed, 
and  the  cause  remanded  for  such  further  proceedings  as  may  be  con- 
sistent with  this  opinion.     It  is  so  ordered. 

GRAY,  J.  Mr.  Justice  Miller  and  myself  concur  in  the  judg- 
ment of  reversal,  on  the  ground  that  the  circuit  court  had  no  juris- 
diction of  the  case,  because  the  record  does  not  show  that  the  defend- 
ant was  an  alien,  or  a  citizen  of  a  different  state  from  that  of  which 
the  plaintiff  was  a  citizen.  We  express  no  opinion  upon  the  ques- 
tion whether,  if  the  record  had  shown  that  state  of  facts,  as  well  as 
that  the  defendant  was  a  consul,  the  circuit  court  would  have  had 
jurisdiction.^ 

*  Prom  4  Sup.  Ct.  Eep.  407. 

81 


CONSULAR  CASES 
BROWN  V.  LANDON,  (1883,  U.  S.) 

30   Ilun.   57. 

Daniels,  Supreme  Court  of  New  York. 

DANIELS:  (Extract)  (58)  The  decedent  died  in  London,  in 
England,  where  it  was  alleged  in  support  of  the  application  he  left  a 
will  making  a  disposition  of  his  estate.  And  the  applicant  for  the 
plaintiff's  appointment  resulting  in  the  order  made  by  the  surrogate 
was  made  under  the  authority  of  the  provisions  of  the  Code,  which 
authorized  the  issuing  of  ancillary  letters  testamentary  and  of  ad- 
ministration. (Code  of  Civil  Procedure,  §  §  2695,  2696,  2697.)  The 
petition  for  the  letters  was  in  proper  form  and  included  the  state- 
ments required  to  sustain  the  application.  But  the  papers  produced 
in  support  of  it  were  irregular  and  insufficiently  authenticated.  For 
this  case  the  law  required  an  exemplified  copy  of  the  will  and  of  the 
foreign  (59)  letters  issued  upon  its  probate,  together  with  the  judg- 
ment or  decree  admitting  it  to  probate.  And  by  section  952  of  the 
Code  of  Civil  Procedure  the  manner  in  which  these  documents 
were  to  be  authenticated  was  prescribed  by  the  legislature,  but  there 
was  a  failure  to  comply  w'ith  these  provisions  of  the  Code.  A  certi- 
ficate of  the  registrar  of  the  probate  court  was  added  to  what  was 
alleged  to  be  a  copy  of  the  will,  and  to  hardly  an  intelligible  state- 
ment of  the  action  taken  upon  the  application  for  its  probate.  And 
these  certificates  were  authenticated  simply  and  solely  by  the  certi- 
ficates of  the  vice  and  deputy  consul-general  of  the  United  States  in 
London,  who  also  certified  himself  to  be  a  notary  public  of  the  United 
States.  But  that  was  not  such  an  authentication  of  the  documents  as 
the  statutes  upon  this  subject  in  very  plain  language  directed  should 
be  made  to  authorize  the  papers  themselves  to  be  read  in  evidence. 

•  •***««** 

(60)  The  power  of  attorney  from  the  administratrix  appoint- 
ed in  the  foreign  proceedings,  and  from  the  son  of  the  decedent,  who 
was  nominated  as  one  of  his  executors,  the  others  having  probably 
declined  to  act,  was  also  produced  in  support  of  the  plaintiff's  ap- 
plication. This  was  in  like  manner  proved  by  the  certificate  of  the 
same  vice-consul.  But  the  acknowledgment  of  this  document  could 
properly  be  taken  before  such  an  officer  (2  R.  S.  [6th  Ed.],  1142,  § 
11) ;  for  while  he  acted  in  that  capacity  he  was  entitled  to  exercise 
the  authority  vested  by  law  in  the  consul  himself.  (U.  S.  R.  S.,  §§ 
1695,  1674,  sub.  3.) 

•  *•****** 

Davis,  P.  J.,  and  Brady,  J,,  concurred. 
Judgment  affirmed. 

82 


CONSULAR  CASES 

BROWN  V.  THE  INDEPENDENCE,  (1836,  U.  S.) 
Crabbe  54;  Fed.  Cases,  2,014. 
Hopkinson,  District  Court. 

(Extract)  The  court  do  not  say  that  there  may  not  be  certain 
matters  in  which  the  official  acts  of  the  consul  may  be  proved  by 
his  official  certificate;  but  the  facts  stated  in  this  certificate  are  not 
of  that  character.  This  is  to  prove  another  certificate  of  the  time 
of  Brown's  discharge  from  the  hospital;  the  proceedings  of  a  police 
court,  the  sentence  of  that  court,  the  nature  of  the  wound  inflicted 
on  Brown,  and  the  hospital  expenses.  None  of  these  are  official  acts 
of  the  consul  nor  did  he  know  one  of  them  of  his  own  knowledge. 
Had  he  sworn  to  them  it  would  have  been  mere  hearsay  evidence. 
He  certified  to  facts  and  proceedings  before  another  tribunal,  with 
which  he  had  nothing  to  do,  and  of  which  he  had  no  knowledge, 
official  or  personal. 

I  will  admit  the  certificate  so  far  as  to  show  that  the  libellant 
was  left  at  Hamburg,  without  the  consul's  knowledge  or  consent,  be- 
cause that  is  material,  but  not  to  prove  the  rest  that  it  contains. 

BROWNE  V.  PALMER,  (1902,  U.  S.) 

92  N.  W.  315. 

Duffie,  Supreme  Court  of  Nebraska. 

(Extract)  We  conclude,  therefore,  that  a  United  States  Consul, 
duly  accredited  by  the  federal  government  to  a  foreign  power,  may, 
under  our  statute,  take  affidavits  or  depositions  for  use  in  our  courts. 

BRUNENT  V.  TABER,  (1854,  U.  S.) 
1  Sprague  243;  Fed.  Cases  2,054. 
Spragiie,  District  Court. 

[Speaks  of  consul's  action  in  the  care  of  sick  and  injured  sea- 
man left  abroad,  but  seems  to  raise  no  question  concerning  the  con- 
sul or  his  action. — Ed.] 

BUCKER  V.  KLORKGETER,  (1849,  U.  S.) 
Abb.  Adm.  402;  Fed.  Cases  2,083. 
Betts,  District  Court. 

(408)  (Extract)  Cases  in  which  the  voyage  was  broken  up  or 
ended  in  this  country,  or  in  which  the  men  were  disharged  here, 
have  been  specified  as  those  in  which  the  courts  would  most  readily 
enforce  the  payment  of  wages  due,  although,  by  the  strict  letter  of 
his  contract,  the  seaman  was  forbidden  to  ask  their  aid.     Aertsen  v. 

83 


CONSULAR  CASES 

The  Aurora,  Bee's  Adm.  R.  160.  In  one  respect,  indeed,  the  Amer- 
ican courts  show  a  greater  favor  to  seamen  in  these  cases,  than  do 
the  courts  of  Great  Britain ;  for  the  former  proceed,  irrespective  of 
any  interference  on  behalf  of  the  seaman  by  his  consul  or  other  na- 
tional representative,  whilst  the  English  courts  would  seem  still  to 
insist  that  the  sanction  of  such  an  officer  to  the  action  shall  be  pro- 
cured, imless  the  nature  of  the  case  forbids.     The  "Wilhelm  Frederick, 

1  Ilagg.  Adm.  R.  138;  Edw.  Adm.  Jur.  128. 

I  am  clear  that,  notwithstanding  a  stipulation  of  this  sort,  the 
courts  of  the  United  States  are  open  for  the  protection  of  foreign 
seamen,  left  destitute  within  their  jurisdiction,  by  improper  dis- 
charge, or  by  the  breaking  up  of  the  voj^age  for  any  other  cause  than 
the  wreck  of  the  vessel. 

BURCHARD,  THE,  (1890,  U.  S.— Germany) 
42  Fed.  Bep.  608. 
Touhnin,  District  Court. 

[German  Consul  has  jurisdiction  by  treaty  over  disputes  in 
which  an  American  member  of  a  crew  of  a  German  ship  brings  a 
libel  for  wages  on  the  ground  that  he  is  entitled  to  a  discharge.  It  is 
for  the  consul  to  decide  whether  he  is  entitled  to  be  discharged, 
even  though  the  court  may  be  of  a  different  opinion  as  to  the  correct- 
ness of  his  decision. — Ed.] 

BYERS  V.  UNITED  STATES,  (1887,  U.  S.) 

22  Ct.  CI.  60. 

Richardson,  Court  of  Claims  of  United  States. 

[Power  to  provide  for  salary  of  consul  based  in  congress  alone, 
so  an  advance  in  salary  made  by  executive  uncollectible. — Ed.] 

CAIGNET  V.  PETTIT,  (1795,  U.  S.— France) 

2  Dall.  2:i4 ;  1  L.  Ed.  362. 

Per  Curiam,  Supreme  Court  of  Pennsylvania. 

A  j>er8on  may  cease  to  be  a  citizen  of  one  country,  without  becoming  a  citi- 
zen of  another. 

This  was  a  scire  facias  against  the  defendants,  as  garnishees  of 
Gilbaud.  Rogue,  and  Co.,  French  citizens  residing  in  the  West  Indiesl 
A  rule  was  obtained  by  the  defendants  to  show  cause  why  the  proceed- 
ings should  not  be  quashed,  upon  the  ground,  that  the  plaintiff  was 
also  a  French  citizen,  and  that,  therefore,  the  court  was  precluded 
from  exercising  any  jurisdiction,  by  the  12th  article  of  the  Consular 

84 


CONSULAR  CASES 

Convention,  which  provides,  that  "all  differences  and  suits  between 
the  citizens  of  France,  in  the  United  States,  or  between  the  citi- 
zens of  the  United  States,  within  the  dominions  of  France,  etc. 
shall  be  determined  by  the  respective  consuls  and  vice-consuls,  either 
by  a  reference  to  arbitrators,  or  by  a  summary  judgment  and  without 
costs.  No  officer  of  the  country,  civil  or  military,  shall  interfere 
therein,  or  take  any  part  whatever  in  the  matter;  and  the  appeals 
from  the  said  consular  sentences  shall  be  carried  before  the  tribunals 
of  France,  or  of  the  United  States,  to  whom  it  may  appertain  to  take 
cognizance  thereof." 

The  facts,  respecting  the  plaintiff's  citizenship,  were  briefly 
these : —  He  was  a  native  of  France,  and  resided  in  the  island  of  St. 
Domingo,  at  the  period  of  the  French  revolution.  He  had  afterwards 
accepted  an  office  from  Louis  XVI.  under  the  constitution  establish- 
ing a  limited  monarchy ;  but  previously  to  the  abolition  of  monarchy, 
and  the  introduction  of  the  republican  system  (the  10th  of  Sept., 
1792)  he  came  to  America,  took  an  oath  of  allegience  to  the  State  of 
Pennsylvania,  imder  the  act  of  March,  1789  (2  vol.  Dall.  Edit.  p.  676) 
which  act,  however,  was  at  the  time  obsolete,^  and  purchased  a 
tract  of  land,  on  which  he  resided.  He  had  not  been  naturalized  con- 
formably to  the  act  of.  Congress ;  but  he  had  frequently  been  heard 
to  express  his  abhorrence  of  the  existing  constitution  of  France;  he 
had  never  done  any  act  showing  his  assent  to  it ;  and  he  had  declared 
an  intention  to  settle,  permanently,  in  America. 

The  plaintiff's  counsel  (Lewis  and  Levy)  made  two  points — 1st. 
That  the  12th  article  of  the  Consular  Convention  applies  only  to 
cases  where  both  parties,  being  French  citizens,  are  actually  resident 
within  the  United  States,  and,  therefore,  does  not  embrace  the  case  of 
a  foreign  attachment. — 2d.  That  the  plaintiff  never  was  a  citizen  of 
the  French  Republic ;  and  in  support  of  the  latter  position  they  cited 
the  following  authorities:  Vatt.  B.  I.  ch.  13.  s.  161,  167.  2  Vent. 
362.  3.  3  Bl.  Com.  298.  Vatt.  B.  3.  ch.  18.  s.  293,  295.  Ibid.  B.  1.  ch. 
19  s.  220,  213.  2  Heinec.  220.  Art.  of  Confed.  s.  4.  Johnson's 
Diet.  "Citizen."     1  Dall.  Rep.  58. 

(235)  For  the  defendants,  it  was  urged,  by  Dallas  and  Du  Pon- 
ceau, on  the  first  point,  that  the  Consular  Convention  extended  to  all 
differences  and  suits  between  French  citizens;  that  a  foreign  attach- 
ment was,  unquestionably,  a  suit;  and  that  the  difference,  or  suit, 
existing  in  the  United  States,  it  was  not  material,  either  to  the  words 
or  spirit  of  the  article,  that  both  the  parties  should  be  actually  resi- 
dent within  the  United  States.  On  the  2d.  point,  it  was  answered, 
that  the  plaintiff  necessarily  remained  a  French  citizen,  till  he  re- 

^  See  Collet  v.  Collet  and  The  United  States  v.  Vilatto,  post. 

85 


CONSULAR  CASES 

nounced  his  allegiance,  or  had  done  some  act  incompatible  with  it; 
that  he  was  not  a  citizen  of  the  United  States;  and  unless  he  was 
a  citizen  of  France,  he  exhibited  the  extraordinary  spectacle  of  a 
human  being  who  had  no  country ! 

BY  THE  COURT. — Many  important  topics  have  been  discussed, 
in  the  course  of  this  argument ;  but  we  do  not  think  it  necessary  to  de- 
cide on  more  than  one  of  them.  The  sole  question  is — were  both  the 
plaintiff  and  the  original  defendants  citizens  of  the  French  Republic, 
at  the  time  of  instituting  this  suit?  "We  are  clearly  of  opinion, 
from  the  facts  disclosed  in  the  affidavits  which  have  been  read,  that 
the  plaintiff  was  not  then,  nor  is  he  now,  a  citizen  of  France.  It  is 
true,  that  he  has  not  acquired  the  rights  of  citizenship  here;  nor,  as 
it  appears,  in  any  other  country ;  but,  whatever  may  be  the  inconven- 
ience of  that  situation,  he  had  an  undoubted  right  to  dissent  from  the 
revolution ;  and,  as  a  member  of  the  minority,  to  refuse  allegiance  to 
the  new  government,  and  withdraw  from  the  territory  of  France, 
Everything  that  could  be  said  or  done  to  manifest  such  a  determina- 
tion, has  been  said  and  done  by  the  plaintiff,  except  the  act  of  becom- 
ing the  subject,  or  citizen,  of  another  country. 

Let  the  rule  be  discharged.^ 

CALDWELL  v.  BARCLAY,  et  al.,  (1788,  U.  S.) 

1  Dall.  305  note. 

Shippen,  Court  of  Common  Pleas  of  Philadelphia  County. 

Foreign  Attachment. — Moylan  obtained  a  rule  to  show  cause  why  this  at- 
tachment should  not  be  quashed,  on  the  ground  that  one  of  the  defendants, 
Barclay,  being  an  American  consul,  and  in  that  character  actually  residing  abroad 
in  the  public  service,  was  not  within  the  description  of  persons,  whose  effects 
were  made  liable  to  foreign  attachment  by  the  act  of  Assembly. 

The  rule  was  opposed  by  Wilson,  Bradford  and  Sergeant,  who  contended, 
that  as  a  consul,  Barclay  was  not  entitled,  by  the  law  of  nations,  to  any  priv- 
ilege or  exemption  from  legal  process;  that,  even  if  he  was  privileged  on  account 

^  On  the  subject  of  the  consular  jurisdiction,  I  have  been  favored  with  a 
note  of  the  following  decision,  taken  from  the  records  of  the  circuit  court  for  the 
district  of  Massachusetts,  in  May  term,  1792. 

ViLLENEUVE   V.    BABEION 

It  was  agreed  by  the  parties  to  submit  this  question  to  the  court,  to  wit: — 
Whether  the  convention  gave  to  the  French  consul  cognizance  of  all  differences 
and  suits  between  P'renchmen ;  or  confined  the  same  to  the  description  of  cases 
therein  enumerated,  or  other  cases  not  arising  from  transactions  in  the  United 
StatesT  And,  further,  that  if  the  court  should  be  of  opinion,  that  the  consular 
jurisdiction  extends  generally  to  all  differences  and  suits  between  Frenchmen, 
that  then  the  plaintiff  shall  discontinue  the  present  action  without  costs. 

The  court,  after  hearing  the  counsel  of  both  sides,  on  the  question  pro- 
posed, were  of  opinion,  that  the  consular  jurisdiction  does  not  extend  generally  to 
all  differences  and  suits  between  P"'renchmen. 

The  plaintiff,  thereupon,  prayed  leave  to  discontinue  his  said  action  without 
costs;  which  being  granted,  he  did  discontinue  accordingly. 

86 


CONSULAR  CASES 

of  his  official  character,  he  had  lost  that  advantage,  by  his  partnership  with  the 
other  defendant,  who  was  not  entitled  to  it;  and  that  the  act  of  Assembly  makes 
no  difference  between  persons  serving  their  country  abroad,  and  any  other  non- 
residents. 

After  an  able  argument,  the  opinion  of  the  court  was  delivered  by  Mr.  Presi- 
dent Shippen;  agreeably  to  which,  the  rule  was  discharged. 

GALLON  V.  WILLIAMS,  (1871,  U.  S.) 
2  Low.  1;  Fed.  Cases  2,324. 
Lowell,  District  Court. 

Wages.— On  the  19th  of  July,  1869,  the  libellant  was  shipped  at 
Boston  as  second  mate  of  the  ship  Puritan,  for  a  voyage  to  Melbourne 
and  elsewhere,  and  back  to  the  United  States.  That  voyage  ended  at 
San  Francisco  in  March,  1870.  The  ship  arrived  at  Melbourne  about 
the  5th  of  November,  1869 ;  and  on  the  8th  of  that  month,  while  the 
vessel  was  lying  at  the  wharf,  some  trouble  (2)  occurred  between  the 
first  mate  and  some  seamen  and  their  friends  from  shore,  who  were 
drunk  and  disorderly.  The  first  officer  called  up  the  libellant  from  the 
hold  to  assist  in  restoring  order.  The  libellant  took  a  pistol  from 
his  state-room,  in  order,  as  he  said,  to  protect  himself,  and  to  frighten 
the  men  into  obedience,  and  by  some  accident  shot  himself  in  the  hand, 
inflicting  a  serious  wound,  which  was  not  fully  healed  at  the  time  of 
the  trial.  A  surgeon  was  sent  for,  and  by  his  direction  the  libellant 
was  taken  to  the  hospital.  The  ship  paid  the  surgeon's  bill,  and  the 
hospital  dues  for  eleven  days,  and  then  the  man  was  discharged  from 
service,  and  three  months'  wages  were  paid  into  the  hands  of  the 
consul.  The  libellant  remained  in  hospital  for  some  weeks  longer, 
and  afterwards  at  Melbourne,  until  about  the  4th  of  April,  1870,  when 
he  was  sent  home  by  the  consul  by  way  of  San  Francisco.  The  master 
ordered  the  second  mate's  clothes  to  be  sent  to  the  consul's  office;  but 
the  evidence  tended  to  show  that  they  did  not  come  to  the  actual 
possession  of  the  man  himself.  All  the  extra  wages  were  expended  in 
the  care,  attendance,  and  support  of  the  libellant  at  Melbourne. 

C.  G.  Thomas,  for  the  libellant. 

S.  Wells,  for  the  respondent. 

LOWELL,  J.  There  is  some  conflict  of  evidence  as  to  the  pre- 
cise way  in  which  this  unfortunate  wound  was  received ;  but  the  ten- 
dency of  the  whole  testimony  is,  that  it  was  not  incurred  wantonly  or 
recklessly,  but  in  the  course  of  what  the  second  officer  considered  to  be 
his  duty.  He  was  summoned  hastily  to  quell  what  at  sea  would  have 
been  a  mutiny,  though  at  the  wharf  it  ought,  no  doubt,  to  have  a 
milder  name.  He  says  he  was  violently  assaulted  by  the  drunken  men, 
and  was  knocked  down  and  kicked  in  the  side.     The  emergency  was 

87 


CONSULAR  CASES 

sudden,  and  so  serious,  that  the  other  man,  who  was  called  on  to  aid 
the  first  mate,  was  frightened  and  did  nothing,  and  the  mate  himself 
was  presently  obliged  to  call  in  the  police.  Assuming,  then,  as  I  do, 
that  the  first  officer,  when  he  saw  the  pistol,  told  the  second  officer  not 
to  use  it.  and  that  this  was  a  very  proper  and  humane  order,  yet  I  do 
not  find  the  libellant  intending  to  disobey  it.  On  the  contrary,  the 
discharge  of  the  pistol  appears  to  have  been  accidental.  (3). 

Under  these  circumstances,  it  does  not  appear  very  gracious  for 
the  o\NTiers  to  strain  any  doubtful  appearances  against  the  only  man 
who  stood  by  the  mate,  and  to  insist  that  he  went  beyond  his  duty  in 
their  service.  He  w'as  not  enforcing  a  personal  right  of  his  own,  nor 
carrying  out  any  personal  quarrel.  I  cannot  hesitate  to  say  that  this 
was  an  injury  incurred  in  the  service  of  the  ship. 

Then  his  general  right  under  the  maritime  law  would  be  to  have 
his  wounds  cured  at  the  ship's  expense,  and  to  receive  his  wages  dur- 
ing the  time  of  his  disability,  or,  at  least,  during  a  reasonable  time, 
not  exceeding  the  length  of  the  remainder  of  the  voyage.  Harden  v. 
Gorron,  2  Mason,  541 ;  The  George,  1  Sumner,  151 ;  Chandler  v. 
Grieves,  2  H.  Bl.  606,  n. ;  The-Latonia,  Crabbe,  63;  The  Atlantic,  1 
Stuart,  Vice  Ad.  125.  There  is  no  evidence  of  any  stipulation  in  the 
shipping  articles  changing  or  abridging  this  right.  The  contract  usual 
in  the  whaling  service  gives  the  officers  and  men  who  are  discharged 
for  such  a  cause  only  wages  pro  rata;  and  the  validity  of  such  a  con- 
tract has  been  recognized  by  this  court  in  Brunent  v.  Taber,  1 
Sprague,  243,  and  in  other  cases.  An  English  statute  has  lately 
adopted  a  similar  rule.  The  ship,  under  that  form  of  contract,  re- 
mains liable  for  the  expense  of  the  man's  sickness  and  of  his  return 
home ;  and  in  Brunent  v.  Taber  it  was  held,  that  the  seaman  having 
been  discharged  by  the  consul  by  reason  of  the  disability,  and  with- 
out being  consulted,  the  two  months'  extra  wages  paid  to  the  consul 
could  not  be  charged  to  him,  unless  he  had  received  them. 

In  this  case  there  is  a  question  whether  the  second  mate 
was  discharged  with  his  own  consent.  The  consul  certifies  that 
he  was  "duly"  discharged;  and  the  master  says  he  told  him  he 
should  be  obliged  to  discharge  him,  and  should  send  his  extra  pay 
and  his  clothes  to  the  consul ;  that  he  does  not  remember  what  answer 
was  given,  but  that  the  libellant  made  no  objection,  and  he  supposed 
he  acquiesced.  The  libellant  denies  that  he  ever  assented,  or,  indeed, 
ever  heard  any  such  conver.sation.  It  seems  probable  that  some  such 
notice  was  given  in  order  to  satisfy  the  consul,  and  I  shall  assume 
that  the  libellant.  being  notified,  did  not  protest.  The  statutes  auth- 
orizing the  discharge  of  seamen,  with  (4)  their  own  consent,  were  not 
intended  to  apply  to  a  case  in  which  the  seaman  is  confined  to  his 


CONSULAR  CASES 

bed  on  shore,  at  the  time  the  vessel  is  to  sail,  by  a  severe  injury  or 
illness  incurred  in  the  service  of  the  ship.  Such  a  discharge  is  noth- 
ing more  than  a  recognition  of  the  fact  that  he  cannot  go  to  sea.  The 
statute  was  intended  for  a  case  in  which  there  is  some  choice  ex- 
ercised to  go  or  stay.  And  there  is  no  consideration  for  a  relinquish- 
ment of  the  seaman's  well-established  rights,  imless,  perhaps,  where 
the  two  months'  extra  wages  would  or  might  be  as  much  as  he  would 
otherwise  be  entitled  to  .  If  a  fair  contract  with  full  understanding 
should  be  arrived  at,  it  might  be  upheld,  though  the  man  were  more 
or  less  ill ;  but  that  he  should  lose  the  right  to  be  cured,  and  sent  home 
from  Australia,  by  a  mere  assent  to  the  necessity  of  leaving  him 
behind,  is  not  within  the  true  intent  of  the  statute.  A  district  judge 
of  great  experience  is  reported  to  have  held  that  the  consul's  certi- 
ficate of  the  seaman's  consent  to  be  discharged  is  conclusive  evidence 
thereof:  Lamb  v.  Briard,  Abbott,  Adm.  367;  but  as  the  consul  has 
not  so  certified  in  this  case,  that  question  does  not  arise. 

The  libellant  is  not  to  have  damages  for  a  wrongful  discharge,  be- 
cause it  appears  to  have  been  entirely  fit  to  leave  him  in  the  hospital ; 
but  he  may  have  wages  to  the  date  of  the  ship's  return  to  San  Fran- 
cisco, which  appears  to  have  been  a  port  of  discharge  within  the 
meaning  of  the  contract,  and  the  port  where  the  seamen  were,  in 
fact,  discharged.  The  precise  date  of  the  termination  of  the  voyage 
was  not  given  in  evidence,  but  it  was  said  to  be  about  the  1st  of 
March.  This  would  give  three  months  and  a  half  at  $35;  that  is, 
$122.50.  Concerning  the  value  of  the  clothes  there  is  much  contro- 
versy ;  and  what  became  of  them  is  not  shown ;  but  as  no  one  knows 
that  they  ever  reached  the  consul's  office,  and  as  the  libellant  swears  he 
never  saw  them,  he  is  entitled  to  recover  their  fair  value.  The  libel- 
lant testifies  to  an  amount  of  clothing  which  is  shown  to  be  more  than 
men  in  his  position  usually  take  to  sea,  and  more  than  he  seemed  to 
possess,  on  the  testimony  of  the  respondents.  But  his  evidence  is,  to 
some  extent,  corroborated  by  his  boarding-house  keeper,  and  the  nega- 
tive evidence,  is  not  full  or  precise.  Allowing  for  the  depreciation 
which  all  such  property  suffers,  it  seems  just  to  estimate  the  (5)  loss 
at  $150 ;  which,  added  to  the  wages,  $122.50,  makes  $272.50.  I  have 
not  deducted  the  extra  wages,  because  they  appear  to  have  been  con- 
sumed in  paying  the  hospital  dues,  passage-money,  and  other  expenses 
for  which  the  ship  was  liable,  the  case  being  in  this  respect  like 
Brunent  v.  Taber,  cited  above. 

Decree  for  libellant  for  $272.50  and  costs, 

89 


CONSULAR  CASES 

CAMPBELL  V.  STEAMER  UNCLE  SAM,  (1856,  U.  S.) 
1  McAllister  77;  Fed.  Cases  2,372. 
McAllister,  Circuit  Court. 

(79)  (Extract)  Such  being  the  conchision,  the  court  must 
consider  that,  released  by  the  breach  of  the  contract  by  the  claim- 
ants, the  seamen  were  entitled  to  their  discharge  according  to  the  gen- 
eral principles  of  the  law  merchant,  without  the  intervention  of  the 
consul  at  Panama.  The  acts  of  congress  on  this  (80)  subject  are 
cumulative,  made  for  the  protection  of  seamen,  and  with  a  view  to 
afford  them  a  prompt  remedy;  certainly  not  to  withdraw  them  from 
the  protection  of  the  courts.  "Whatever  has  been  the  action  of  the 
consul,  or  the  form  of  his  certificate — whether  legal  or  illegal,  regu- 
lar or  irregular — it  could  not  be  conclusive  upon  this  court,  nor  shut 
its  door  upon  the  libelants. 

In  Hutchinson  v.  Coombs  (Ware,  65),  it  is  laid  down  that  the 
certificate  as  to  the  discharge  of  a  seaman  will  not  preclude  the  court 
from  inquiring  into  the  cause  of  his  discharge,  and  awarding  dam- 
ages if  his  discharge  was  unjustifiable.  "Whether  the  law  under 
which  the  consul  acted  be  constitutional  or  not;  whether,  if  consti- 
tutional, the  conduct  of  the  consul  was  in  strict  accordance  with  it; 
whether  his  action  was  honest,  or,  as  is  alleged,  covinous,  are  not  the 
subjects  of  inquiry. 

The  question  is,  * '  Were  the  libelants  entitled  to  their  discharge  ? '  * 
After  the  breach  of  the  contract  by  the  claimants,  and  the  detention 
of  the  libelants,  arising  out  of  that  breach,  for  upwards  of  a  month 
at  Panama,  I  consider  them  entitled  to  such  discharge. 

It  is  proper  to  dispose  of  two  objections  urged  by  the  proctor  for 
respondents.  It  is  urged  that  there  is  error  in  the  court  below  in 
permitting  the  discharge  of  libelants  at  Panama  by  the  certificate  of 
the  consul,  which  is  not  made  evidence  by  law. 

A  threefold  answer  was  given:  first,  it  appears  by  the  judge's 
notes  on  file  that  libelants  proffered  to  establish  their  discharge  by 
parol  testimony,  that  respondents  objected  to  its  competency,  and, 
upon  their  motion,  it  was  ruled  out  by  the  court;  second,  no  exception 
was  taken  in  the  court  below  to  the  admission  as  evidence  of  the  con- 
sul's certificate;  and  (81)  third,  the  exhibit  "A"  annexed  to  the 
answer,  being  the  protest  of  the  master,  expressly  admits  the  dis- 
charge, and  only  insists  on  its  irregularity. 

CAROLINA,  THE,  see  Fry  v.  Cook. 

90 


CONSULAR  CASES 

CASTRO  V.  De  URIARTE,  (1883,  U.  S.— Spain) 
16  Fed.  Kep.  93. 
Brown,  District  Court. 

BROWN,  J.  This  is  a  motion  for  a  new  trial,  made  by  the 
plaintiff,  for  alleged  error  of  the  court  in  directing  a  verdict  for  the 
defendant.  The  action  was  brought  against  the  defendant,  the  con- 
sul general  of  Spain,  for  false  imprisonment  and  malicious  prosecu- 
tion in  extradition  proceedings,  upon  the  complaint  of  the  defendant, 
in  which  the  plaintiff  was  arrested  and  brought  before  a  commis- 
sioner on  October  2,  1881,  and  subsequently  discharged  for  the  reason 
that  the  offense  of  forgery  for  which  he  was  arrested,  was  committed, 
as  it  subsequently  appeared,  before  the  ratification  of  the  treaty 
with  Spain.     12  Fed.  Rep.  250. 

Upon  the  trial  there  was  no  substantial  dispute  in  regard  to 
the  facts.  The  plaintiff  was  a  stranger  to  the  defendant,  and  the 
action  of  the  latter  was  wholly  in  an  official  capacity,  and  under  or» 
ders  from  his  government.  The  facts  clearly  negative  any  express 
malice.  The  plaintiff  himself,  in  his  testimony,  stated  that  he  did  not 
believe  there  was  any  malice  on  the  part  of  the  defendant. 

The  court  ruled  (1)  that  the  warrant  was  sufficient  on  its  face 
to  authorize  the  arrest  of  the  accused;  (2)  that,  upon  the  undisputed 
facts,  the  defendant  had  probable  cause  for  the  proceedings,  and  was 
not  chargeable  with  malice,  and,  on  that  ground,  directed  a  verdict. 
Exceptions  were  duly  taken  to  both  of  these  rulings,  upon  which  the 
motion  for  a  new  trial  is  now  made. 

1.  It  is  contended  that  the  warrant  under  which  the  plaintiff 
was  arrested  was  void,  because  it  did  not  show  "what  act  or  instru- 
ment the  plaintiff  was  charged  with  forging  or  falsifying."  Article 
2  of  (95)  the  convention  with  Spain,  January  5,  1877,  provides  that 
"persons  shall  be  delivered  up  who  shall  have  been  charged  with  or 
convicted  of  any  of  the  following  crimes:"  "Subdivision  9,  forgery 
or  the  utterance  of  forged  papers;"  subdivision  10,  "the  forgery  or 
falsification  of  the  official  acts  of  the  government  or  public  authority, 
including  courts  of  justice,  or  the  uttering  or  fraudulent  use  of  any  of 
the  same."  The  warrant  in  this  case  recited  that  the  plaintiff  had 
been  charged  "with  having,  in  the  kingdom  of  Spain  and  in  its  juris- 
diction, to-wit,  at  Havana,  Island  of  Cuba,  on  or  about  the  twenty- 
fifth  day  of  September,  1881,  committed  the  crime  of  forgery  by  forg- 
ing an  official  document,  or  falsification  of  the  official  acts  of  the 
government  of  Spain,  or  public  authority." 

In  the  case  of  Macdonnell,  11  Blatchf.  79,  88,  the  circuit  judge 
says: 

"The  description  of  the  offense  might,  in  my  opinion,  for  all  purposes  of 

91 


CONSULAR  CASES 

insertion  in  the  warrant  of  arrest,  have  followed  the  words  of  the  treaty. 
*  •  *  This  is  all  that  is  essential  to  jurisdiction  of  the  subject-matter.  It  is 
not  necessary  that  the  particulars  required  to  be  proved  in  order  to  establish  the 
offense  mentioned  in  the  treaty  should  be  specified  in  the  warrant.  *  *  *  The 
warrant,  reciting  other  jurisdictional  facts,  declares  that  on  complaint  to  the  of- 
ficer '  forgery '  is  charged,  etc.  If  there  were  no  other  detail  or  specification,  I 
should  hold  that,  for  all  the  purposes  of  the  warrant  of  arrest,  this  was  suf- 
ficient. ' ' 

At  common  law  it  was  not  necessary  to  recite  the  accusation  in 
the  warrant.  Under  the  Revised  Statutes  of  New  York,  vol.  2,  p. 
*706,  §  3.  and  Code  Crim.  Proe.  §  §  151,  152,  the  warrant  must  state 
the  accusation,  offense,  or  crime;  but  it  is  sufficient  to  state  it  by  its 
statutory  designation  without  further  particulars.  Payne  v.  Barnes, 
5  Barb.  465;  Atchinson  v.  Spencer,  9  "Wend.  62;  People  v.  Donohue, 
84  N.  Y.  438.  The  description  of  the  offense  in  this  warrant  con- 
forms to  the  requirements  of  the  treaty  and  to  the  practice  in  the 
state  of  New  York,  and  such  a  warrant  cannot,  upon  the  above  auth- 
orities, be  held  void  upon  its  face.  See,  to  the  same  effect,  the  very- 
interesting,  late  case  of  Terraz,  4  Exch.  Div.  63. 

2.  It  is  further  contended  that  the  warrant  of  arrest  was  void 
both  because  no  preliminary  mandate  had  been  obtained  from  the 
executive  authorizing  the  extradition  proceedings,  and  because  the 
warrant  did  not  set  forth  any  such  preliminary  mandate. 

In  the  case  of  Farez,  7  Blatchf.  34,  46,  it  is  said  that  where  such 
a  preliminary  mandate  **is  made  a  prerequisite  by  the  treaty,"  it 
should  be  set  forth  upon  the  face  of  the  warrant.  In  my  opinion 
this  treaty  does  not  make  such  a  warrant  a  prerequisite. 

(96)  In  the  earlier  cases  in  this  district  it  was  held,  following 
the  opinion  of  Nelson,  J.,  in  Ex  parte  Kaine,  3  Blatchf.  1,  that  a 
preliminary'  mandate  from  the  executive  was  in  all  cases  necessary  to 
authorize  a  commissioner  to  entertain  the  proceedings,  whether  the 
treaty  contained  any  reference  to  such  a  preliminary  mandate  or  not. 
This  was  questioned  by  Woodruff,  C.  J.,  in  the  case  of  Macdonnell, 
11  Blatchf.  79,  83;  and  in  the  case  of  Herman  Thomas,  12  Blatchf. 
370,  379.  the  circuit  and  district  judges  in  this  district  concurred  that 
no  such  preliminary  mandate  was  necessary,  "except  where  made  so 
by  the  treaty."  In  that  case  the  proceedings  were  instituted  under 
the  treaty  with  Bavaria,  which  like  the  treaty  with  Great  Britain, 
makes  no  allusion  to  any  preliminary  mandate  of  the  executive.  See, 
also,  in  re  Kelley,  2  Low.  339. 

Article  11  of  the  convention  with  Spain  declares  that  "requisi- 
tions for  the  surrender  of  fugitives  from  justice  shall  be  made  by  the 
respective  diplomatic  agents  of  the  contracting  parties,"  or,  in  their 
absence,  by  its  "superior  consular  officers."     It  next  provides,  that — 

92 


CONSULAR  CASES 

* '  It  shall  be  competent  for  such  representatives  or  such  superior  consular  of- 
ficers to  ask  and  obtain  a  mandate  or  preliminary  warrant  of  arrest  for  the  per- 
son whose  surrender  is  sought,  whereupon  the  judges  and  magistrates  of  the 
two  governments  shall,  respectively,  have  power  and  authority,  upon  complaint 
made  under  oath,  to  issue  a  warrant  for  the  apprehension  of  the  person  charged, 
in  order  that  he  or  she  may  be  brought  before  such  judge  or  magistrate,  that  the 
evidence  of  criminality  may  be  heard  and  considered;  and  if,  on  such  hearing,  the 
evidence  be  deemed  sufficient  to  sustain  the  charge,  it  shall  be  the  duty  of  the 
examining  judge  or  magistrate  to  certify  the  same  to  the  proper  executive  author- 
ity, that  a  warrant  may  issue  for  the  surrender  of  the  fugitive." 

The  "requisition  for  surrender"  above  provided  for  is  mani- 
festly the  application  for  the  final  warrant  for  the  surrender  of  the 
fugitive,  which  can  only  be  executed  by  the  executive  authority, 
after  the  judicial  examination.  That  requisition  is  wholly  different 
from  the  "mandate  or  preliminary  warrant  of  arrest,"  which  it  is 
also  "competent  to  ask,  and  obtain,"  at  the  outset;  and  while  it  is 
thus  competent  to  ask  for  such  a  preliminary  warrant,  the  language 
of  this  section  of  the  treaty  is  plainly  permissive,  and  not  necessarily 
obligatory,  if  other  means  are  provided  by  law  for  obtaining  a  judi- 
cial investigation,  preliminary  to  final  surrender.  Such  means  are 
plainly  provided  by  section  5270  of  the  Revised  Statutes,  embodying 
the  act  of  August  12,  1848,  (9  St.  at  Large,  302.)  This  section 
provides  that — 

"Whenever  there  is  a  treaty  or  convention  for  extradition,"  etc.,  "any  jus- 
tice, commissioner, ' '  etc.,  ' '  may,  upon  complaint  made  under  oath,  charging 
any  person  found  within  the  limits  of  any  state,  district,  or  territory  with  (97) 
having  committed  within  the  jurisdiction  of  any  such  foreign  government  any  of 
the  crimes  provided  for  by  such  treaty  or  convention,  issue  his  warrant  for  the 
apprehension  of  the  person  so  charged,  that  he  may  be  brought  before  such  jus- 
tice or  commissioner,  to  the  end  that  the  evidence  of  criminality  may  be  heard  and 
considered.  If,  on  such  hearing,  he  deems  the  evidence  sufficient  to  sustain  the 
charge  *  *  *  he  shall  certify  the  same  to  the  secretary  of  state,  that  a  war- 
rant may  issue  upon  the  requisition  of  the  proper  authorities  of  such  foreign 
government  for  the  surrender  of  such  person,  according  to  the  stipulations  of  the 
treaty  or  convention,  and  he  shall  issue  his  warrant  for  the  commitment  of  the 
person  so  charged  to  the  proper  jail,  there  to  remain  until  such  surrender  shaU 
be  made." 

The  treaty  with  Spain  was  made  on  January  5,  1877,  subsequent 
to  the  Revised  Statutes ;  but  section  5270  is  evidently  intended  to  ap- 
ply to  treaties  that  might  thereafter  be  made,  as  well  as  to  treaties 
then  existing.  It  was  so  held  in  the  case  of  Van  Ploven,  4  Dill.  411, 
414;  and  the  act  of  August  12,  1848,  which  was  substantially  the  same 
as  section  5270,  expressly  declared  that  these  provisions  are  to  be 
applied  "in  all  cases  in  which  there  now  exists,  or  hereafter  may 
exist,  any  treaty  or  convention  for  extradition. ' ' 

93 


CONSULAR  CASES 

Treaties  duly  ratified  under  the  constitution  (article  6)  are 
doubtless  a  part  of  the  supreme  law  of  the  land,  and  their  stipula- 
tions and  obligations  will  not  be  deemed  annulled  by  acts  of  mere 
general  legislation  which  can  be  reasonably  construed  otherwise.  The 
Cherokee  Tobacco,  11  Wall,  616,  623;  Taylor  v.  Morton,  2  Curt. 
454;  Ropes  v.  Clinch,  8  Blatchf.  304,  309.  But  the  mere  fact  that 
a  treaty  provides  a  mode  of  carrying  out  its  provisions,  in  the  ab- 
sence of  legislation,  cannot  make  it  incompetent  for  congress  to  pass 
laws  in  aid  of  the  treaty,  and,  in  order  to  faciliate  the  extradition 
of  criminals,  to  dispense  with  a  part  of  those  preliminaries  which 
otherwise  it  might  be  necessary  for  the  foreign  government  to  resort 
to.  The  procedure  indicated  by  section  5270,  above  quoted,  is  in 
substance  identical  with  that  contemplated  by  the  treaty  with  Spain, 
except  that  it  dispenses  with  any  preliminary  executive  warrant.  Had 
there  been  no  law  of  congress  upon  the  subject,  such  an  executive 
warrant  would  have  been  necessary  in  order  to  authorize  the  magis- 
trates to  proceed;  but,  inasmuch  as  the  law  of  this  country  express- 
ly authorizes  the  magistrates  to  proceed,  "whenever  there  is  a  treaty 
or  convention  for  extradition,"  without  reference  to  any  preliminary 
executive  warrant,  such  a  warrant  seems  to  me  clearly  unnecessary, 
if  the  demanding  government  chooses  to  avail  itself  of  the  law  exist- 
ing outside  of  the  treaty,  and  proceed  without  the  preliminary  man- 
date. 

(98)  This  construction  of  the  treaty  has  been  adopted  by  the 
executive  department.  In  an  oflScial  letter  from  Mr.  Frelinghuysen, 
secretary  of  state,  to  the  Spanish  minister,  bearing  date  May  23, 
1862,  after  referring  to  section  5270,  Rev.  St.,  above  quoted,  it  is  said : 

"This  provision  of  the  statutes  of  the  United  States  is  deemed  by  this  gov- 
ernment to  be  in  aid  of  the  provisions  of  the  convention;  and  the  provisions  of 
article  11  of  the  convention  are  held  to  be  directory  only.  Under  these  circum- 
stances the  warrant  of  authorization  from  the  secretary  of  state  is  not  considered 
as  indispensable.  It  may  often  happen  that  an  instant  arrest  is  expedient  in  ordei 
to  secure  the  accused  fugitive  for  examination  into  his  criminality;  and  in  such 
emergencies  the  delay  incident  to  procuring  the  virarrant  of  authorization  from 
this  department  might  defeat  the  purposes  of  justice.  The  personal  rights,  more- 
over, of  the  accused  are  secured  by  the  provisions  of  the  convention,  no  less 
than  by  those  of  the  statute,  inasmuch  as  he  can  only  be  surrendered  on  satisfac- 
tory evidence  of  his  criminality. ' ' 

While  the  construction  which  may  be  placed  by  the  executive 
department  upon  laws  or  treaties  is  not  necessarily  binding  upon  the 
judiciarj',  yet  where  its  construction  is  not  repugnant  either  to  their 
letter  or  obivious  intent,  and,  as  in  this  case,  is  sustained  by  such 
manifest  considerations  of  convenience  and  expediency,  it  should  be 
adopted  without  hesitation.     This  construction  is  not  repugnant  to  the 

94 


CONSULAR  CASES 

language  of  this  treaty.  The  preliminary  warrant  is  permissive  only. 
It  is  not  made  obligatory.  It  is  not,  in  the  language  of  this  court 
in  the  case  of  Farez,  "made  a  prerequisite  by  the  treaty."  Con- 
gress might  have  provided  by  law,  in  the  absence  of  any  treaty,  for 
an  examination  of  offenders  charged  with  committing  crimes  in 
foreign  countries,  and  for  their  surrender  if  satisfactory  evidence  of 
guilt  appeared.  A  person  arrested  under  such  a  law  could  not  be 
heard  to  complain  that  there  was  no  treaty  requiring  his  surrender, 
or,  if  the  statute  were  followed,  that  his  arrest  was  illegal.  Congress 
has,  in  fact,  provided  that  "whenever  there  is  a  treaty  or  convention 
for  extradition,"  certain  proceedings  may  be  had.  And  this  law  is 
without  regard  to  the  particular  provisions  of  the  various  treaties, 
and  requires  no  previous  executive  mandate.  The  proceeding  in  this 
case  was  in  strict  accordance  with  this  law  of  congress;  and  a  pro- 
ceeding which  in  all  respects  follows  that  law  and  all  its  conditions 
cannot  be  void  so  as  to  serve  as  the  basis  of  an  action  for  false  im- 
prisonment. Nor  can  it  be  said  that  this  construction  would  make 
wholly  useless  the  terms  of  a  treaty  allowing  an  application  for  a 
preliminary  mandate.  In  the  first  place  there  may  be  no  general  law 
of  Spain  providing  for  any  course  of  procedure  outside  of  the  treaty 
stipulations;  and  as  this  convention  relates  to  both  countries  alike, 
(99)  it  may  have  been  necessary  then,  and  may  be  still,  in  all  cases 
of  applications  by  our  government  for  the  surrender  of  criminals  by 
Spain,  to  obtain  such  a  preliminary  warrant,  in  order  to  authorize 
the  magistrates  of  that  country  to  proceed  with  a  judicial  investiga- 
tion. Or,  again,  cases  may  arise  of  such  a  political  character  that  it 
may  be  expedient  and  desirable  that  the  demanding  government, 
upon  presentation  of  the  facts,  should  obtain  from  the  executive  an 
immediate  consideration  and  decision  of  the  question  involved  in 
the  surrender  claimed,  without  the  delay  or  publicity  incident  to  a 
previous  judicial  examination ;  and  in  such  a  case  it  is  still  at  the 
option  of  the  demanding  government  to  require  a  preliminary  war- 
rant and  thus  obtain  the  ruling  of  the  executive  at  once. 

In  effect,  under  our  law,  two  proceedings  are  available  to  the  de- 
manding government; — one,  according  to  the  provisions  of  the  treaty 
alone;  and  the  other  under  the  Revised  Statutes  as  well;  and  so  long 
as  the  provisions  of  neither  are  repugnant  to  the  other,  as  in  this 
case  they  are  not,  it  is  at  the  option  of  the  demanding  government  to 
pursue  either.  But  even  if  it  were  held  that  to  authorize  the  final 
surrender  of  the  accused  all  the  provisions  of  the  treaty  should  be 
literally  followed,  I  do  not  see  how,  in  an  action  for  false  imprison- 
ment, the  proceeding  on  the  warrant  of  arrest  can  be  held  void,  when 
it  is  expressly  authorized  by  a  valid  law  of  congress,  and  exactly  fol- 

95 


CONSULAR  CASES 

loAvs  the  provisions  of  the  statute.  This  objection,  therefore,  should 
be  overruled. 

3.  It  is  further  urged  that  the  court  erred  in  not  submitting  to 
the  jury  the  question  of  probable  cause,  on  the  part  of  the  defendant, 
in  instituting  the  proceedings  before  the  commissioner. 

On  the  twenty -ninth  of  September  the  defendant,  as  consul  gen- 
eral, received  from  the  Spanish  minister  an  order  to  procure  the  ar- 
rest of  the  plaintiff  in  extradition  proceedings,  who,  it  appeared  from 
the  telegram  from  Havana  on  that  day,  had  sailed  from  Cuba  for 
New  York  on  the  27  th.  The  consul  thereupon  applied  to  the  com- 
missioner, and  was  told  that  more  definite  and  specific  charges  were 
necessary.  Being  directed  by  the  Spanish  minister  to  communicate 
directly  with  the  captain  general  of  Cuba,  the  defendant  telegraphed 
for  the  particulars  of  the  offense. 

On  the  second  of  October  the  defendant  received  in  reply  a  fur- 
ther telegram,  stating  that  the  crime  of  Castro  was  obtaining  moneys 
under  false  pretense,  deceit,  imposition,  and  falsification  of  public 
documents.  In  the  meantime  Castro  had  arrived,  had  been  traced 
to  Sixteenth  street  in  this  city,  and  it  was  feared  would  depart  to 
(100)  Canada.  The  information  by  telegram  was  sufficient  except  in 
fixing  the  date  of  offense. 

The  treaty  provided  that  it  should  not  apply  to  any  offense  com- 
mitted before  its  date,  that  is,  1877.  In  this  exigency,  the  defendant 
being  informed  by  the  commissioner  that  the  precise  date  of  the  of- 
fense was  immaterial,  provided  that  it  were  within  the  period  of 
the  treaty,  it  was  considered  under  the  telegram  for  extradition 
that  the  offense  was  undoubtedly  committed  within  the  treaty  period, 
and  probably  about  the  time  of  his  escape;  and  the  complaint  was 
accordingly  vsTitten  out  upon  information  and  belief,  stating  that  the 
time  of  the  offense  was  on  or  about  September  25,  1881. 

Upon  the  warrant  issued  upon  this  complaint  the  plaintiff  was 
arrested  and  brought  before  the  commissioner  the  following  morn- 
ing, allowed  to  go  on  his  own  parol  upon  his  statement  that  the 
offense  alleged  was  prior  to  the  treaty,  and  this  being  verified  by 
telegrams  in  answer  to  further  inquiries,  he  was  upon  the  following 
day  discharged. 

Upon  these  facts  there  was  no  dispute,  nor  was  it  claimed  that 
the  consul  general  was  actuated  by  any  motives  other  than  the 
proper  performance  of  an  official  duty,  under  the  orders  received,  to 
procure  the  extradition  of  the  plaintiff.  It  appeared  upon  the  trial 
that  the  plaintiff  had  been  recently  indicted  upon  this  charge  of 
forger}',  which  had  only  been  discovered  in  1880;  that  he  had  given 
bail  for  his  appearance   before  the  proper  magistrate  in   Havana, 

96 


CONSULAR  CASES 

which  he  had  forfeited  by  his  departure  to  this  country.  Under  the 
orders  which  the  consul  general  had  received  from  the  Spanish 
minister,  it  was  his  duty,  under  heavy  penalties  to  his  own  govern- 
ment, to  act  with  diligence. 

The  only  questions  on  this  branch  of  the  case  were  whether  the 
defendant  was  legally  chargeable  with  malice,  and  whether,  under  the 
circumstances,  he  had  provable  cause  for  charging  the  offense  within 
the  treaty  period.  To  sustain  the  court  for  malicious  prosecuting, 
both  malice  and  the  want  of  probable  cause  must  so  exist.  It  seemed 
to  me  at  the  trial,  and  it  seems  to  me  still,  that  under  the  undisputed 
facts  there  is  but  one  possible  answer  to  both  questions,  and  that  is 
that  there  was  no  malice,  and  that  the  defendant  was  warranted  in 
assuming,  and  was  bound  to  assume,  under  the  circumstances,  where 
immediate  action  on  his  part  was  demanded,  that  the  offense  for  which 
he  was  required  to  procure  extradition  was  committed  within  the 
period  of  the  treaty ;  that  under  such  instructions  and  such  telegrams, 
not  only  was  this  probable,  but  the  contrary  was  (101)  highly  im- 
probable ;  and  that  had  he  suffered  the  accused  to  escape  through  a 
failure  to  proceed  upon  the  possible  but  improbable  contingency 
that  the  date  of  the  offense  was  prior  to  the  treaty,  he  would  have 
been  justly  subject  to  the  charge  of  negligence  of  official  duty  had 
the  crime  been  committed  within  the  treaty  period.  As  that  was  the 
only  reasonable  inference  under  the  circumstances,  the  complaint  was 
not  without  probable  cause,  as  it  was  also  without  malice. 

In  the  case  of  Stewart  v.  Sonneborn,  98  U.  S.  187,  the  court 
quote  with  approval  the  language  used  in  Sutton  v.  Johnstone,  1 
Term  R.  493:  "The  question  of  probable  cause  is  a  mixed  question 
of  law  and  of  fact.  Whether  the  circumstances  alleged  to  show  it  prob- 
able are  true,  and  existed,  is  a  matter  of  fact;  but  whether,  suppos- 
ing them  to  be  true,  they  amount  to  a  probable  cause,  is  a  question 
of  law."  And,  say  the  court:  "This  is  the  doctrine  generally 
adopted.  It  is  therefore,  generally,  the  duty  of  the  court,  when 
evidence  has  been  given  to  prove  or  disprove  the  existence  of  prob- 
able cause,  to  submit  to  the  jury  its  credibility,  and  what  facts  it 
proves,  with  instructions  that  the  facts  found  amount  to  proof  of 
probable  cause,  or  that  they  do  not."  See,  also,  Heyne  v,  Blair,  62 
N.  Y.  19. 

On  this  branch  of  the  case  there  were  no  facts  in  dispute,  nor, 
as  it  seems  to  me,  any  rational  doubt  in  regard  to  the  inference  to 
be  drawn  from  them,  namely,  that  there  was  no  malice  nor  want 
of  probable  cause  in  the  proceeding  of  the  defendant;  and  it  was, 
therefore,  the  duty  of  the  court  to  direct  a  verdict  in  his  favor.  Com- 
missioners V.  Clark,  94  U.  S.  278,  284. 

The  motion  for  a  new  trial  should  be  denied,  with  costs. 

97 


CONSULAR  CASES 

CATLETT  V.  PACIFIC  INS.  CO.,  (1826,  U.  S.) 

1  Paine.  5M;  Fed.  Cases  2,517. 
T}iompso)i,  Circuit  Court. 

(Extract)  These  proceedings  purported  to  be  under  the  seal 
of  the  court,  certified  by  the  register,  and  accompanied  by  a  certifi- 
cate of  the  American  consul,  under  his  seal  of  office,  that  he  was  such 
register. — I  attach  no  credit  to  the  consular  certificate.  It  has  been 
said  that  he  is  an  officer  recognized  by  the  law  of  nations,  and  en- 
titled to  credit.  The  law  of  nations  recognizes  him  only  in  com- 
mercial transactions,  but  not  as  clothed  with  any  authority  to  authen- 
ticate judicial  proceedings. 

(LAS)  CAYGAS  v.  LARIONDA'S  SYNDIC,  (1816,  U.  S.) 

4  Martins  Eeports  Louisiana  283. 
Mathews,  Supreme  Court  of  Louisiana. 

(Extract)  As  the  instrument  [a  power  of  attorney,  purport- 
ing to  have  been  executed  before  a  notary  public]  offered  in  evi- 
dence is  clearly  not  one  of  those  which  could  receive  authenticity  by 
the  certificate  of  one  of  the  agents  of  our  government. 

CHARLOTTE,  THE,  (1804,  Great  Britain— Russia) 

5  Bob.  C.  313. 

Sir  William  Scott,  High  Court  of  Admiralty. 

(Extract)  It  is  said  that  the  claimant  in  that  instance  was 
the  Swedish  consul  in  Russia;  but  that  circumstance  could  have 
made  no  difference,  since  it  must  have  been  familiar  to  all  who  had  to 
judge  of  that  case,  that  his  character  of  consul  to  a  foreign  nation 
could  not  vary  the  principle  that  was  to  be  applied  to  it.  As  a  per- 
son resident  in  Russia,  he  could  be  considered  in  no  other  light 
than  other  merchants  of  the  country. 

CHESTER  V.  BENNER,  (1871,  U.  S.) 

2  Low.  76;   Fed.  Cases  2,660. 

Lowell,  Di.strict  Court. 

(Extract)  That  case  (Jordan  v.  Williams,  1  Curtis  C.  C.  69) 
virtually  decides,  that,  in  suits  between  the  crew  and  the  master  or 
owners,  such  an  imprisonment  by  order  of  a  consul  must  be  presumed 
to  have  been  neces.sarj',  and,  it  seems  to  follow  and  is  intimated  by  the 
court,  that  the  nece.ssary  charges  resulting  from  that  course  must  fall 
upon  the  seaman,  as  between  them  and  the  o\\Tiers,  though  they  have 
a  right  of  redress  against  the  consul.     In  a  case  like  this,  in  which 

98 


CONSULAR  CASES 

no  single  sum  in  dispute  is  large  enough  to  admit  of  an  appeal,  I  must 
follow  that  decision  of  the  circuit  court,  though  I  venture  to  think  its 
reasoning  unsound. 

CHTTRCH  V.  HTJBBART,  (1804,  U.  S.) 

2  Cranch  187,  237. 

Marshall,  Supreme  Court. 

(232)  March  5th.  MARSHALL,  Ch.  J.,  delivered  the  opinion 
of  the  court. 

If,  in  this  case,  the  court  had  been  of  the  opinion  that  the  cir- 
cuit court  had  erred  in  its  construction  of  the  policies,  which  constitute 
the  ground  of  action ;  that  is,  if  we  had  conceived  that  the  defence  set 
up  would  have  been  insufficient,  admitting  it  to  have  been  clearly 
made  out  in  point  of  fact,  we  could  have  deemed  it  right  to  have  de- 
clared that  opinion,  although  the  case  might  have  gone  off  on  other 
points;  because  it  is  desirable  to  terminate  every  cause  upon  its  real 
merits,  if  those  merits  are  fairly  before  the  court,  and  to  put  an  end 
to  litigation  where  it  is  in  the  power  of  the  court  to  do  so.  But  no 
error  is  perceived  in  the  opinion  given  on  the  construction  of  the 
policies.  If  the  proof  is  sufficient  to  show  that  the  loss  of  the  vessel 
and  cargo  was  occassioned  by  attempting  an  illicit  trade  with  the 
Portuguese;  that  an  offense  was  actually  committed  against  the  laws 
of  that  nation,  and  that  they  were  condemned  by  the  government  on 
that  account,  the  case  comes  fairly  within  the  exception  of  the  poli- 
cies, and  the  risk  was  one  not  intended  to  be  insured  against. 

The  words  of  the  exception  in  the  first  policy  are,  "The  insurers 
are  not  liable  for  seizure  by  the  Portuguese  for  illicit  trade. ' ' 

In  the  second  policy  the  words  are,  ' '  The  insurers  do  not  take  the 
risk  of  illicit  trade  with  the  Portuguese." 

The  counsel  on  both  sides  insist  that  these  words  ought  to  re- 
ceive the  same  construction,  and  that  each  exception  is  substantially 
the  same. 

The  court  is  of  the  same  opinion.  The  words  themselves  are  not 
essentially  variant  from  each  other,  and  no  reason  is  perceived  for 
supposing  any  intention  in  the  contracting  parties  to  vary  the  risk. 

For  the  plaintiff  it  is  contended,  that  the  terms  used  require  an 
actual  traffic  between  the  vessel  and  inhabitants,  (233)  and  a  seizure 
in  consequence  of  that  traffic,  or  at  least  that  the  vessel  should  have 
been  brought  into  port,  in  order  to  constitute  a  case  which  comes 
within  the  exception  of  the  policy.  But  such  does  not  seem  to  be  the 
necessary  import  of  the  words.  The  more  enlarged  and  liberal  con- 
struction given  to  them  by  the  defendants,  is  certainly  warranted  by 

99 


CONSULAR  CASES 

common  usuago;  and  wherever  words  admit  of  a  more  extensive  or 
more  restricted  signification,  they  must  be  taken  in  that  sense  which 
is  required  by  the  subject  matter,  and  which  will  best  effectuate 
what  it  is  reasonable  to  suppose  was  the  real  intention  of  the  parties. 

In  this  case,  the  unlawfulness  of  the  voyage  was  perfectly 
understood  by  both  parties.  That  the  Cro^^^l  of  Portugal  excluded, 
with  the  most  jealous  watchfulness,  the  commercial  intercourse  of 
foreigners  with  their  colonies,  was,  probably,  a  fact  of  as  much 
notoriety  as  that  foreigners  had  devised  means  to  elude  this  watchful- 
ness, and  to  carry  on  a  gainful  but  very  hazardous  trade  with  these 
colonies.  If  the  attempt  should  succeed  it  would  be  very  profitable, 
but  the  risk  attending  it  was  necessarily  great.  It  was  this  risk 
which  the  underwriters,  on  a  fair  construction  of  their  words,  did 
not  mean  to  take  upon  themselves.  "They  are  not  liable,"  they 
say,  "for  seizure  by  the  Portuguese  for  illicit  trade."  They  do  not 
take  the  risk  of  illicit  trade  \sath  the  Portuguese."  Now  this  illicit 
trade  was  the  sole  and  avowed  object  of  the  voyage,  and  the  vessel 
was  engaged  in  it  from  the  time  of  her  leaving  the  port  of  New 
York.  The  risk  of  this  illicit  trade  is  separated  from  the  various 
other  perils  to  which  vessels  are  exposed  at  sea,  and  excluded  from 
the  policy.  Whenever  the  risk  commences,  the  exception  commences 
also,  for  it  is  apparent  that  the  underwriters  meant  to  take  upon 
theiTLselves  no  portion  of  that  hazard  which  was  occasioned  by  the 
unlawfulness  of  the  voyage. 

If  it  could  have  been  presumed  by  the  parties  to  this  contract, 
that  the  laws  of  Portugal,  prohibiting  commercial  intercourse  be- 
tween their  colonies  and  foreign  merchants,  permitted  vessels  to 
enter  their  ports,  or  to  hover  off  their  coasts  for  the  purposes  of 
trade,  with  impunity,  and  only  subjected  them  to  seizure  and  con- 
demnation (234)  after  the  very  act  had  been  committed,  or  if  such 
are  really  their  laws,  then  indeed  the  exception  might  reasonably  be 
supposed  to  have  been  intended  to  be  as  limited  in  its  construction  as 
is  contended  for  by  the  plaintiff.  If  the  danger  did  not  commence 
till  the  ves-sel  was  in  port,  or  till  the  act  of  bargain  and  sale,  without 
a  permit  from  the  governor,  had  been  committed,  then  it  would  be 
reasonable  to  consider  the  exception  as  only  contemplating  that 
event.  But  this  presumption  is  too  extravagant  to  have  been  made. 
If,  indeed,  the  fact  itself  should  be  so,  then  there  is  an  end  of  pre- 
sumption, and  the  contract  will  be  expounded  by  the  law.  But  as  a 
general  principle,  the  nation  which  prohibits  commercial  intercourse 
with  its  colonies  must  be  supposed  to  adopt  measures  to  make  that 
prohibition  effectual.  They  must,  therefore,  be  supposed  to  seize 
ve-ssels  coming  into  their  harbors,  or  hovering  on  their  coasts,  in  a 

100 


CONSULAR  CASES 

condition  to  trade,  and  to  be  afterwards  governed  in  their  proceed- 
ings with  respect  to  those  vessels  by  the  circumstances  which  shall 
appear  in  evidence.  That  the  officers  of  that  nation  are  induced 
occasionally  to  dispense  with  their  laws,  does  not  alter  them,  or 
legalize  the  trade  they  prohibit.  As  they  may  be  executed  at  the 
will  of  the  governor,  there  is  always  danger  that  they  will  be  executed, 
and  that  danger  the  insurers  have  not  chosen  to  take  upon  themselves. 

That  the  law  of  nations  prohibits  the  exercise  of  any  act  of 
authority  over  a  vessel  in  the  situation  of  the  Aurora,  and  that  this 
seizure  is,  on  that  account,  a  mere  marine  trespass,  not  within  the 
exception,  cannot  be  admitted.  To  reason  from  the  extent  of  pro- 
tection a  nation  will  afford  to  foreigners  to  the  extent  of  the  means  it 
may  use  for  its  own  security  does  not  seem  to  be  perfectly  correct. 
It  is  opposed  by  principles  which  are  universally  acknowledged. 
The  authority  of  a  nation  within  its  own  territory  is  absolute 
and  exclusive.  The  seizure  of  a  vessel  within  the  range  of  its  can- 
non by  a  foreign  force  is  an  invasion  of  that  territory,  and  is  a  hostile 
act  which  it  is  its  duty  to  repel.  But  its  power  to  secure  itself  from 
injury  may  certainly  be  exercised  beyond  the  limits  of  its  territory. 
Upon  this  principle  the  right  of  a  belligerent  to  search  a  neutral 
vessel  on  the  high  seas  for  contraband  of  war  is  universally  (235) 
admitted,  because  the  belligerent  has  a  right  to  prevent  the  injury 
done  to  himself  by  the  assistance  intended  for  his  enemy ;  so,  too,  a  na- 
tion has  a  right  to  prohibit  any  commerce  with  its  colonies.  Any 
attempt  to  violate  the  laws  made  to  protect  this  right,  is  an  injury  to 
itself  which  it  may  prevent,  and  it  has  a  right  to  use  the  means 
necessary  for  its  prevention.  These  means  do  not  appear  to  be 
limited  within  any  certain  marked  boundaries,  which  remain  the 
same  at  all  times  and  in  all  situations.  If  they  are  such  as  unneces- 
sarily to  vex  and  harass  foreign  lawful  commerce,  foreign  nations 
will  resist  their  exercise.  If  they  are  such  as  are  reasonable  and 
necessary  to  secure  their  laws  from  violation,  they  will  be  sub- 
mitted to. 

In  different  seas,  and  on  different  coasts,  a  wider  or  more  con- 
tracted range,  in  which  to  exercise  the  vigilance  of  the  government, 
will  be  assented  to.  Thus  in  the  Channel,  where  a  very  great  part 
of  the  commerce  to  and  from  all  the  north  of  Europe,  passes  through 
a  very  narrow  sea,  the  seizure  of  vessels  on  suspicion  of  attempting 
an  illicit  trade,  must  necessarily  be  restricted  to  very  narrow  limits; 
but  on  the  coast  of  South  America,  seldom  frequented  by  vessels 
but  for  the  purpose  of  illicit  trade,  the  vigilance  of  the  government 
may  be  extended  somewhat  further;  and  foreign  nations  submit 
to  such  regulations  as  are  reasonable  in  themselves,  and  are  really 

101 


CONSULAR  CASES 

necessary  to  secure  that  monopoly  of  colonial  commerce,  whicli  is 
claimed  by  all  nations  holding  distant  possessions. 

If  this  right  be  extended  too  far,  the  exercise  of  it  will  be  re- 
sisted. It  has  occasioned  long  and  frequent  contests,  which  have 
sometimes  ended  in  open  war.  The  English,  it  will  be  well  recol- 
lected, complained  of  the  right  claimed  by  Spain  to  search  their 
vessels  on  the  high  seas,  which  was  carried  so  far  that  the  guarda 
castas  of  that  nation  seized  vessels  not  in  the  neighborhood  of  their 
coasts.  This  practice  was  the  subject  of  long  and  fruitless  negotia- 
tions, and  at  length  of  open  war.  The  right  of  the  Spaniards  was 
supposed  to  be  exercised  unreasonably  and  vexatiously,  but  it  never 
was  contended  that  it  could  only  be  exercised  within  the  range  of  the 
cannon  from  their  batteries.  Indeed,  the  (236)  right  given  to  our 
own  revenue  cutters,  to  visit  vessels  four  leagues  from  our  coast,  is 
a  declaration  that  in  the  opinion  of  the  American  government,  no 
such  principle  as  that  contended  for  has  a  real  existence. 

Nothing,  then,  is  to  be  drawn  from  the  laws  or  usages  of  nations, 
which  gives  to  this  part  of  the  contract  before  the  court  the  very 
limited  construction  which  the  plaintiff  insists  on,  or  which  proves 
that  the  seizure  of  the  Aurora,  by  the  Portuguese  governor,  was  an 
act  of  lawless  violence. 

The  argument  that  such  act  would  be  within  the  policy,  and  not 
within  the  exception,  is  admitted  to  be  well  founded.  That  the  ex- 
clusion from  the  insurance  of  "the  risk  of  illicit  trade  with  the 
Portuguese,"  is  an  exclusion  only  of  that  risk,  to  which  such  trade 
is  by  law  exposed,  will  be  readily  conceded. 

It  is  unquestionably  limited  and  restrained  by  the  terms  "illicit 
trade."  No  seizure,  not  justifiable  under  the  laws  and  regulations 
established  by  the  Crown  of  Portugal,  for  the  restriction  of  foreign 
commerce  with  its  dependencies,  can  come  within  this  part  of  the 
contract,  and  every  seizure  which  is  justifiable  by  those  laws  and 
regulations  must  be  deemed  within  it. 

To  prove  that  the  Aurora  and  her  cargo  was  sequested  at  Para, 
in  conformity  with  the  laws  of  Portugal,  two  edicts  and  the  judg- 
ment of  sequestration  have  been  produced  by  the  defendants  in  the 
circuit  court.  These  documents  were  objected  to  on  the  principle 
that  they  were  not  properly  authenticated,  but  the  objection  was 
overruled,  and  the  judges  permitted  them  to  go  to  the  jury. 

The  edicts  of  the  Crown  are  certified  by  the  American  consul  at 
Libson  to  be  copies  from  the  original  law  of  the  realm,  and  this 
certificate  is  granted  under  his  official  seal. 

Foreign  laws  are  well  understood  to  be  facts  which  must,  like 
other  facts,  be  proved  to  exist  before  they  can  be  received  in  a  court 

102 


CONSULAR  CASES 

of  justice.  The  principle  (237)  that  the  best  testimony  shall  be  re- 
quired which  the  nature  of  the  thing  admits  of;  or,  in  other  words, 
that  no  testimony  shall  be  received  which  presupposes  better  testi- 
mony attainable,  by  the  party  who  offers  it,  applies  to  foreign  laws 
as  it  does  to  all  other  facts.  The  sanction  of  an  oath  is  required  for 
their  establishment,  unless  they  can  be  verified  by  some  other  such 
high  authority  that  the  law  respects  it  not  less  than  the  oath  of  an 
individual. 

In  this  ease  the  edicts  produced  are  not  verified  by  an  oath.  The 
consul  has  not  sworn ;  he  has  only  certified  that  they  are  truly  copied 
from  the  originals.  To  give  to  this  certificate  the  force  of  testimony, 
it  will  be  necessary  to  show  that  this  is  one  of  those  consular  func- 
tions to  which,  to  use  its  own  language,  the  laws  of  this  country  at- 
tach full  faith  and  credit. 

Consuls,  it  is  said,  are  officers  known  to  the  law  of  nations,  and 
are  intrusted  with  high  powers.  This  is  very  true,  but  they  do  not 
appear  to  be  intrusted  with  the  power  of  authenicating  the  laws  of 
foreign  nations.  They  are  not  the  keepers  of  those  laws.  They  can 
grant  no  official  copies  of  them.  There  appears  no  reason  for  assign- 
ing to  their  certificates  respecting  a  foreign  law  any  higher  or  differ- 
ent degree  of  credit,  than  would  be  assigned  to  their  certificates  of 
any  other  fact. 

It  is  very  truly  stated  that  to  require  respecting  laws  or  other 
transactions,  in  foreign  countries  that  species  of  testimony  which 
their  institutions  and  usages  do  not  admit  of,  would  be  unjust  and 
unreasonable.  The  court  will  never  require  such  testimony.  In  this 
as  in  all  other  cases,  no  testimony  will  be  required  which  is  shown 
to  be  unattainable.  But  no  civilized  nation  will  be  presumed  to  re- 
fuse those  acts  for  authenticating  instruments  which  are  usual,  and 
which  are  deemed  necessary  for  the  purposes  of  justice.  It  cannot 
be  presumed  that  an  application  to  authenticate  an  edict  by  the  seal 
of  the  nation  would  be  rejected,  unless  the  fact  should  appear  to  the 
court.  Nor  can  it  be  presumed  that  any  difficulty  exists  in  obtaining 
a  copy.  Indeed,  in  this  very  case  the  very  testimony  offered  would 
contradict  such  a  presumption.  The  paper  offered  to  the  (238)  court 
is  certified  to  be  a  copy  compared  with  the  original.  It  is  impossible 
to  suppose  that  this  copy  might  not  have  been  authenticated  by  the 
oath  of  the  consul  as  well  as  by  his  certificate. 

It  is  asked  in  what  manner  this  oath  should  itself  have  been 
authenticated,  and  it  is  supposed  that  the  consular  seal  must  ulti- 
mately have  been  resorted  to  for  this  purpose.  But  no  such  necessity 
exists.     Commissions  are  always  granted  for  taking  testimony  abroad, 

103 


CONSULAR  CASES 

and  the  commissioners  have  authority  to  administer  oaths,  and  to 
certify  the  depositions  by  them  taken. 

The  edicts  of  Portugal,  then,  not  having  been  proved,  ought  not 
to  have  been  laid  before  the  jury. 

The  paper  offered  as  a  true  copy  from  the  original  proceedings 
against  the  Aurora,  is  certified  mider  the  seal  of  his  arms  by  D.  J'ono 
de  Ahueida  de  Mello  de  Castro,  who  states  himself  to  be  the  secretary 
of  state  for  foreign  affairs,  and  the  consul  certifies  the  English  copy 
which  accompanies  it  to  be  a  true  translation  of  the  Portugese  original. 

Foreign  judgments  are  authenticated, 

1.  By  an  exemplification  under  the  great  seal. 

2.  By  a  copy  proved  to  be  a  true  copy. 

3.  By  the  certificate  of  an  officer  authorized  by  law,  which 
certificate  must  itself  be  properly  authenticated. 

These  are  the  usual,  and  appear  to  be  the  most  proper,  if  not 
the  only,  modes  of  verifying  foreign  judgments.  If  they  be  all  be- 
yond the  reach  of  the  party,  other  testimony  inferior  in  its  nature 
might  be  received.  But  it  does  not  appear  that  there  was  any  in- 
superable impediment  to  the  use  of  either  of  these  modes,  and  the 
court  cannot  presume  such  impediment  to  have  existed.  Nor  is  the 
certificate  which  has  been  obtained  an  admissible  substitute  for 
either  of  them. 

If  it  be  true  that  the  decrees  of  the  colonies  are  transmitted 
(239)  to  the  seat  of  government,  and  registered  in  the  department 
of  state,  a  certificate  of  that  fact  under  the  great  seal,  with  a  copy 
of  the  decree  authenticated  in  the  same  manner,  would  be  sufficient 
prima  facie  evidence  of  the  verity  of  what  was  so  certified ;  but  the 
certificate  offered  to  the  court  is  under  the  private  seal  of  the  person 
giving  it,  which  cannot  be  known  to  this  court,  and  of  consequence 
can  authenticate  nothing.  The  paper,  therefore,  purporting  to  be  a 
sequestration  of  the  Aurora  and  her  carge  in  Para  ought  not  to  have 
been  laid  before  the  jury. 

Admitting  the  originals  in  the  Portuguese  language  to  have  been 
authenticated  properly,  yet  there  was  error  in  admitting  the  transla- 
tion to  have  been  read  on  the  certificate  of  the  consul.  Interpreters 
are  always  sworn,  and  the  translation  of  a  consul  not  on  oath  can 
have  no  greater  validity  than  that  of  any  other  respectable  man. 

If  the  court  erred  in  admitting  as  testimony  papers  which  ought 
not  have  been  received,  the  judgment  is  of  course  to  be  reversed 
and  a  new  trial  awarded.  It  is  urged  that  there  is  enough  in  the 
record  to  induce  a  jury  to  find  a  verdict  for  the  defendants,  inde- 
pendent of  the  testimony  objected  to,  and  that,  in  saying  what 
judgment  the  court  below  ought  to  have  rendered,  a  direction  to  that 

104 


CONSULAR  CASES 

effect  might  be  given.  If  this  was  even  true  in  point  of  act,  the  in- 
ference is  not  correctly  drawn.  There  must  be  a  new  trial,  and  at 
the  new  trial  each  party  is  at  liberty  to  produce  new  evidence.  Of 
consequence  this  court  can  give  no  instructions  respecting  that  evi- 
dence. 

The  judgment  must  be  reversed  with  costs,  and  the  cause  re- 
manded to  be  again  tried  in  the  circuit  court,  with  instructions  not 
to  permit  the  copies  of  the  edicts  of  Portugal  and  the  sentence  in  the 
proceedings  mentioned  to  go  to  the  jury,  unless  they  be  authenti- 
cated according  to  law/ 

Cited  4  Cranch.  72;  8  Pet.  517,  518;  Id.  523;  13  Pet.  218;  14  How.  427; 
1  Bald.  91;  1  Gall.  63;  3  Mason  20;  2  Sum.  359;  1  Wood.  &  M.  488;  2  Wash. 
120. 

CLARKE  V.  CRETICO,  (1808,  Great  Britain) 

1  Taunton  105. 

Sir  James  Mansfield,  Court  of  Common  Pleas. 

The  defendant,  who  was  stated  to  be  consul  general  of  the 
Sublime  Porte,  in  London,  being  in  custody  under  an  arrest,  a  rule 
nisi  was  obtained  in  the  last  term  for  his  discharge. 

Bayley,  Serjt.  in  the  same  term,  showed  cause  against  the  rule. 
He  contended,  1st.  That  in  fact,  the  appointment  of  the  defendant 
had  been  expressly  revoked;  2dly.  That  the  privilege  from  arrest 
did  not  extend  to  the  office  of  consul.  It  is  not  conferred  by  any 
statute:  the  act  of  7  Ann.  c.  12.,  speaks  only  of  "ambassadors  or  other 
public  ministers."  But  a  consul  is  not  a  public  minister.  Vattel, 
b.  2,  e.  2.  s.  34.  It  is  no  part  of  his  office  to  transact  business  between 
the  two  states.  The  principal  objects  of  his  appointment  are  to 
decide  controversies  among  persons  of  his  own  nation,  and  to  give 
them  from  time  to  time  such  advice  and  information  as  may  be 
necessary  for  the  direction  of  their  conduct,  and  for  the  regulation 
of  their  commercial  concerns.  In  Barbuit's  ease,  Cases  temp.  Talb. 
281.,  although  there  was  no  decision  upon  this  point,  yet  the  opinion 
of  Lord  Talbot  was  against  the  privilege.  To  extend  the  exemption 
to  persons  in  this  situation  would  be  attended  with  much  inconven- 
ience; because  they  are  generally  engaged  in  trade,  and  are  fre- 
quently subjects  of  the  country  in  which  their  office  is  exercised. 

^  In  the  argument  of  this  case,  a  question  was  suggested  by  Chase,  J. 
whether  a  bill  of  exceptions  would  lay  to  a  charge  given  by  the  judge  to  the 
jury,  unless  it  be  upon  a  point  on  which  the  opinion  of  the  court  was  prayed; 
and  doubted  whether  it  would  within  the  statute  of  Westminster. 

MAESHALL,  C.  J.,  thought  it  would,  and  observed  that  in  England  the 
correctness  of  the  instruction  of  the  judge  to  the  jury  at  nisi  prius,  usually  came 
before  the  court  on  a  motion  for  a  new  trial,  and  if  in  this  country  the  question 
could  not  come  up  by  a  bill  of  exceptions,  the  party  would  be  without  remedy. 

105 


CONSULAR  CASES 

Neither,  according  to  the  best  authorities,  is  the  person  of  a  consul 
privileged  from  arrest  by  the  law  of  nations.  Wicquefort,  in  his 
treatis  entitled  the  ambassador,  b.  1.  s.  5,,  observes,  "that  consuls  are 
only  merchants,  who  notwithstanding  their  office  of  judge  in  the 
controversies  that  may  arise  between  those  of  their  own  nation, 
carry  on  at  the  same  time  their  o^vn  traffic,  and  are  liable  to  the 
justice  of  the  place  where  they  reside,  as  well  in  criminal  as  civil 
matters;  which  is  altogether  inconsistent  with  the  quality  of  public 
minister."  But,  3dly.  This  appointment  being  derived  from  the 
late  Sultan  Selim,  is  determined  by  the  deposition  of  that  monarch. 
Several  months  have  elapsed  since  that  event;  the  defendant  has 
continued  to  reside  in  this  country,  and  if  the  privilege,  provided  it 
ever  existed,  be  held  still  to  continue,  no  period  can  be  assigned  for 
its  termination. 

Best,  Serjt.  contra,  denied  that  the  defendant's  appointment 
had  been  revoked.  2dly.  As  to  the  general  question  whether  a 
consul  was  privileged  from  arrest,  he  observed,  that  in  the  case  of 
Triquet  v.  Bath,  3  Burr.  1481.  Lord  Mansfield  recognizes  and  con- 
firms the  doctorine  laid  down  in  Barbuit's  case  by  Lord  Talbot,  who 
"declared  his  clear  opinion  that  the  law  of  nations  in  its  full  extent 
was  part  of  the  law  of  England."  It  would  be  sufficient,  therefore, 
to  show  that  by  the  law  of  nations,  a  consul  is  entitled  to  this  priv- 
ilege, without  inquiring  whether  he  is  in  the  strict  sense  of  the  words 
a  public  minister.  Vattel,  b.  2.  c,  2.  s.  34.  in  treating  the  subject, 
observes,  "that  the  sovereign,  by  the  very  act  of  receiving  him, 
tacitly  engages  to  allow  him  all  the  liberty  and  safety  necessary  to 
the  proper  discharge  of  his  functions,  without  which  the  admission 
of  the  consul  would  be  nugatory  and  delusive.  His  functions  re- 
quire that  he  should  be  independent  of  the  ordinary  criminal  justice 
of  the  place  where  he  resides,  so  as  not  to  be  molested  or  imprisoned, 
unless  he  himself  violate  the  law  of  nations  by  some  enormous  crime." 
"With  respect  to  the  opinion  of  Wicquefort,  he  has  also  shown  (lb.) 
that  the  instances  to  which  that  writer  refers  contradict  the  position 
which  they  are  cited  to  establish.  It  is  admitted  that  in  Barbuit's 
case  there  was  no  decision  against  the  claim;  and  the  reporter  men- 
tions in  a  note,  that  "the  person  was  afterwards  discharged  by  the 
secretary's  office  satisfying  the  creditors,"  so  strong  was  the  opinion 
in  favor  of  the  privilege.  Though  it  sometimes  happens  that  a 
consul  is  a  native  of  the  country  in  which  his  office  is  exercised,  the 
government,  if  it  thinks  proper,  may  refuse  to  admit  a  subject  to  act 
in  that  character: — the  supposed  inconvenience  arising  from  this 
circuni-stance  may  therefore  be  easily  obviated.  As  to  the  third 
point,  he  denied  that  the  defendant's  privilege  was  affected  by  the 

106 


CONSULAR  CASES 

deposition  of  his  sovereign.  "A  minister,  notwithstanding  the  death 
of  his  master,  still  continues  to  be  the  minister  of  the  nation,  and 
as  such,  is  entitled  to  enjoy  all  the  rights  and  honors  annexed  to 
that  character."  Vattel,  b.  4.  c.  9.  s.  126.  It  is  his  duty  to  remain 
in  the  country  to  which  he  has  been  sent,  until  the  pleasure  of  his 
new  sovereign  be  known,  "If  he  be  recalled  or  dismissed,  though 
his  functions  cease,  his  rights  and  privileges  do  not  immediately  ex- 
pire ;  he  retains  them  till  his  return  to  his  soverign,  to  whom  he  is  to 
make  a  report  of  his  mission."     lb.  s.  125. 

Mansfield,  Ch.  J.  It  has  not  been  clearly  proved  that  the  de- 
fendant held  the  office  of  consul  at  the  time  of  the  arrest.  The  gen- 
eral question  is  undoubtedly  of  importance;  but  it  is  not  necessary 
that  the  court  should  come  to  any  determination  upon  it  at  present. 
The  office  of  consul  is  indeed  widely  different  from  that  of  an  am- 
bassador; but  still  the  duties  of  it  cannot  be  performed  by  a  person 
in  prison.  Yet  I  should  have  some  difficulty  in  deciding  in  opposition 
to  Wicquefort,  who  is  an  authority  of  great  weight,  and  without  any 
determination  upon  the  question,  (for  in  the  case  before  Lord  Tal- 
bot there  was  no  decision,)  that  a  consul  is  entitled  to  that  privilege. 
The  words  of  the  statute  are  "ambassador  or  other  public  minister." 
but  a  consul  is  certainly  not  a  public  minister.  Let  the  case  stand 
over  till  it  shall  be  ascertained  by  further  evidence,  whether  the  ap- 
pointment of  the  defendant  has  been  revoked. 

Bayley  having  now  produced  an  affidavit  by  which  it  appeared 
that  the  defendant  had  been  dismissed  from  his  office  in  the  month 
of  December,  1806. 

The  rule  was  discharged. 

COFFIN  V.  WELD,  (1871,  U.  S.) 

2  Low.  81;  Ted.  Cases  2,953. 
Lowell,  District  Court. 

(Extract)  And  as  a  general  rule,  the  right  to  wages  after  a 
discharge,  which  is  not  made  at  the  request  of  the  mariner,  may  be 
supported  or  contested  on  its  merits,  notwithstanding  the  action  of 
the  consul.  The  consul  has  jurisdiction,  as  will  presently  appear, 
to  inquire  into  cruel  treatment  of  the  crew  by  the  master  and  officers ; 
and  if  the  consul  in  this  case  had  decided  that  there  had  been  no 
cruelty,  his  finding  might  be  conclusive:  I  know  of  no  authority 
that  the  consul  has  to  discharge  a  seaman  for  disobedience.  I  do  not 
mean  that  he  may  not  and  ought  not  to  advise  the  master  or  that 
the  latter  may  not  discharge  a  man  for  wilful  and  obstinate  refusal 
of  duty ;  but  that  in  a  suit  for  wages,  the  ultimate  responsibility  rests 
on  the  master  and  that  the  advice  of  the  consul  is  only  evidence,  and 

107 


CONSULAR  CASES 

not  a  judicial  and  conclusive  finding,  that  the  man  ought  to  be  dis- 
charged: U.  S.  V.  Lunt.  18  Law  Reporter  683.  The  consul  at 
Singajiore  took  the  right  course,  and  discharged  the  men  for  cruel 
treatment  by  the  mate,  and  noted  the  cause  of  discharge  upon  the 
articles  though  they  had  not  deserted. 

COHENS  V.  VIRGINIA,   (1821,  U.  S.) 

6  Wheat.  2G4. 

Marshall,  Supreme  Court. 

(Extract)  It  has  been  also  contended,  that  this  jurisdiction, 
if  given,  is  original,  and  cannot  be  exercised  in  the  appellate  form. 

The  words  of  the  constitution  are,  "in  all  cases  affecting  am- 
bassadors, other  public  ministers,  and  consuls,  and  those  in  which 
a  .state  shall  be  a  party,  the  supreme  court  shall  have  original 
jurisdiction.  In  all  the  other  cases  before  mentioned,  the  supreme 
court  shall  have  appellate  jurisdiction." 

This  distinction  between  original  and  appelate  jurisdiction,  ex- 
cludes, w^e  are  told,  in  all  cases,  the  exercise  of  the  one  where  the 
other  is  given. 

The  con.stitution  gives  the  supreme  court  original  jurisdiction 
in  certain  enumerated  cases,  and  gives  it  appellate  jurisdiction  in 
all  others. 

Among  those  in  which  jurisdiction  must  be  exercised  in  the  ap- 
pellate (393)  form,  are  cases  arising  under  the  constitution  and  laws 
of  the  United  States.  These  provisions  of  the  constitution  are  equally 
obligatory,  and  are  to  be  equally  respected.  If  a  state  be  a  party, 
the  jurisdiction  of  this  court  is  original;  if  the  case  arise  under  a 
constitution  or  a  law,  the  jurisdiction  is  appellate.  But  a  case  to 
which  a  state  is  a  party  may  arise  under  the  constitution  or  a  law 
of  the  United  States.  What  rule  is  applicable  to  such  a  case  1  What, 
then,  becomes  the  duty  of  the  court?  Certainly,  we  think,  so  to 
construe  the  constitution  as  to  give  effect  to  both  provisions,  as  far  as 
it  is  po.ssible  to  reconcile  them,  and  not  to  permit  their  seeming 
repugnancy  to  destroy  each  other.  We  must  endeavor  so  to  con- 
strue them  as  to  preserve  the  true  intent  and  meaning  of  the  in- 
strument. 

In  one  description  of  cases,  the  jurisdiction  of  the  court  is  found- 
ed entirely  on  the  character  of  the  parties;  and  the  nature  of  the 
controversy  is  not  contemplated  by  the  constitution.  The  character 
of  the  parties  is  everjlhing,  the  nature  of  the  case  nothing.  In  the 
other  description  of  cases,  the  jurisdiction  is  founded  entirely  on 
the  character  of  the  case,  and  the  parties  are  not  contemplated  by 
the  constitution.     In  these,  the  nature  of  the  case  is  everything,  the 

108 


CONSULAR  CASES 

character  of  the  parties  nothing.  When,  then,  the  constitution  de- 
clares the  jurisdiction,  in  cases  where  a  state  shall  be  a  party,  to  be 
original,  and  in  all  cases  arising  under  the  constitution  or  a  law,  to 
be  appellate,  the  conclusion  seems  irresistible,  that  its  framers  de- 
signed to  include  in  the  first  class  (394)  those  cases  in  which  juris- 
diction is  given,  because  a  state  is  a  party;  and  to  include  in  the 
second,  those  in  which  jurisdiction  is  given,  because  the  case  arises 
under  the  constitution  or  a  law. 

This  reasonable  construction  is  rendered  necessary  by  other 
considerations. 

That  the  constitution  or  a  law  of  the  United  States,  is  involved 
in  a  case,  and  makes  a  part  of  it,  may  appear  in  the  progress  of  a 
cause  in  which  the  courts  of  the  Union,  but  for  that  circumstance, 
would  have  no  jurisdiction,  and  which  of  consequence  could  not 
originate  in  the  supreme  court.  In  such  a  case,  the  jurisdiction  can 
be  exercised  only  in  its  appellate  form.  To  deny  its  exercise  in  this 
form  is  to  deny  its  existence,  and  would  be  to  construe  a  clause,  di- 
viding the  power  of  the  supreme  court,  in  such  a  manner  as  in  a 
considerable  degree  to  defeat  the  power  itself.  All  must  perceive, 
that  this  construction  can  be  justified  only  where  it  is  absolutely 
necessary.  We  do  not  think  the  article  under  consideration  pre- 
sents that  necessity. 

It  is  observable,  that  in  this  distributive  clause,  no  negative  words 
are  introduced.  This  observation  is  not  made  for  the  purpose  of  con- 
tending that  the  legislature  may  "apportion  the  judicial  power  be- 
tween the  supreme  and  inferior  courts  according  to  its  will."  That 
would  be,  as  was  said  by  this  court  in  the  case  of  Marbury  v.  Madison, 
to  render  the  distributive  clause  "mere  supplusage,"  to  make  it 
"form  without  substance."  This  cannot,  therefore,  be  the  true  con- 
struction of  the  article. 

(395)  But  although  the  absence  of  negative  words  will  not 
authorize  the  legislature  to  disregard  the  distribution  of  the  power 
previously  granted,  their  absence  will  justify  a  sound  construction  of 
the  whole  article,  so  as  to  give  every  part  its  intended  effect.  It  is 
admitted,  that  "affirmative  words  are  often,  in  their  operation, 
negative  of  other  objects  than  those  affirmed:"  and  that  where  "a 
negative  or  exclusive  sense  must  be  given  to  them,  or  they  have  no 
operation  at  all,"  they  must  receive  that  negative  or  exclusive  sense. 
But  where  they  have  full  operation  without  it ;  where  it  would  destroy 
some  of  the  most  important  objects  for  which  the  power  was  created ; 
then,  we  think,  affirmative  words  ought  not  to  be  construed  nega- 
tively. 

The  constitution  declares,  that  in  cases  where  a  state  is  a  party, 

109 


CONSULAR  CASES 

the  supreme  court  shall  have  original  jurisdiction ;  but  does  not  say 
that  its  appellate  jurisdiction  shall  not  be  exercised  in  cases  where, 
from  their  nature,  appellate  jurisdiction  is  given,  whether  a  state 
be  or  be  not  a  party.  It  may  be  conceded,  that  where  the  case  is  of 
such  a  nature  as  to  admit  of  its  originating  in  the  supreme  court, 
it  ought  to  originate  there;  but  where,  from  its  nature,  it  cannot 
originate  in  that  court,  these  words  ought  not  to  be  so  construed  as 
to  require  it.  There  are  many  cases  in  which  it  would  be  found  ex- 
tremely difficult,  and  subversive  of  the  spirit  of  the  constitution,  to 
maintain  the  construction,  that  appellate  jurisdiction  cannot  be  ex- 
ercised where  one  of  the  parties  might  sue  or  be  sued  in  this  court. 

The  constitution  defines  the  jurisdiction  of  the  (396)  supreme 
court,  but  does  not  define  that  of  the  inferior  courts.  Can  it  be 
affirmed,  that  a  state  might  not  sue  the  citizen  of  another  state  in  a 
circuit  court?  Should  the  circuit  court  decide  for  or  against  its 
jurisdiction,  should  it  dismiss  the  suit,  or  give  judgment  against 
the  state,  might  not  its  decision  be  revised  in  the  supreme  court? 
The  argument  is,  that  it  could  not;  and  the  very  clause  which  is 
urged  to  prove  that  the  circuit  court  could  give  no  judgment  in  the 
ease,  is  also  urged  to  prove  that  its  judgment  is  irreversible.  A  super- 
vising court,  whose  peculiar  province  it  is  to  correct  the  errors  of  an 
inferior  court,  has  no  power  to  correct  a  judgment  given  without 
jurisdiction,  because,  in  the  same  case,  that  supervising  court  has 
original  jurisdiction.  Had  negative  w^ords  been  employed,  it  would 
be  difficult  to  give  them  this  construction  if  they  would  admit  of  any 
other.  But,  without  negative  words,  this  irrational  construction  can 
never  be  maintained. 

So,  too,  in  the  same  clause,  the  jurisdiction  of  the  court  is  de- 
clared to  be  original,  "in  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls."  There  is,  perhaps,  no  part  of  the  article 
under  consideration  so  much  required  by  national  policy  as  this; 
unless  it  bo  that  part  which  extends  the  judicial  power  "to  all  cases 
arising  under  the  constitution,  laws,  and  treaties  of  the  United  States." 
It  has  been  generally  held,  that  the  state  courts  have  a  concurrent 
jurisdiction  with  the  federal  courts,  in  cases  to  which  the  judicial 
power  is  extended,  unless  the  jurisdiction  of  the  federal  courts  be 
rendered  exclusive  (397)  by  the  words  of  the  third  article.  If  the 
words,  "to  all  eases,"  give  exclusive  jurisdiction  in  cases  affecting 
foreign  ministers,  they  may  also  give  exclusive  jurisdiction,  if  such 
be  the  will  of  congres.s,  in  cases  arising  imder  the  constitution,  laws, 
and  treaties  of  the  T'nited  States.  Now,  suppose  an  individual  were 
to  sue  a  foreign  mini.ster  in  a  .state  court,  and  that  court  were  to 
maintain  its  jurisdiction,  and  render  judgment  against  the  minister, 

110 


CONSULAR  CASES 

could  it  be  contended  that  this  court  would  be  incapable  of  revising 
such  judgment,  because  the  constitution  had  given  it  original  juris- 
diction in  the  case?  If  this  could  be  maintained,  then  a  clause  in- 
serted for  the  purpose  of  excluding  the  jurisdiction  of  all  other 
courts  than  this,  in  a  particular  case,  would  have  the  effect  of  ex- 
cluding the  jurisdiction  of  this  court  in  that  very  case,  if  the  suit  were 
to  be  brought  in  another  court,  and  that  court  were  to  assert  juris- 
diction. This  tribunal,  according  to  the  argument  which  has  been 
urged,  could  neither  revise  the  judgment  of  such  other  court,  nor 
suspend  its  proceedings;  for  a  writ  of  prohibition,  or  any  other 
similar  writ,  is  in  the  nature  of  appellate  process. 

Foreign  consuls  frequently  assert  in  our  prize  courts  the 
claims  of  their  fellow  subjects.  These  suits  are  maintained  by  them 
as  consuls.  The  appellate  power  of  this  court  has  been  frequently 
exercised  in  such  cases,  and  has  never  been  questioned.  It  would  be 
extremely  mischievous  to  withhold  its  exercise.  Yet  the  consul  is  a 
party  on  the  record.  The  truth  is,  that  where  the  words  confer  only 
appellate  jurisdiction,  original  jurisdiction  is  most  (398)  clearly  not 
given;  but  M^here  the  words  admit  of  appellate  jurisdiction,  the 
power  to  take  cognizance  of  the  suit  originally,  does  not  necessarily 
negative  the  power  to  decide  upon  it  on  an  appeal,  if  it  may  originate 
in  a  different  court. 

It  is,  we  think,  apparent,  that  to  give  this  distributive  clause 
the  interpretation  contended  for,  to  give  to  its  affirmative  words  a 
negative  operation,  in  every  possible  case,  would  in  some  instances, 
defeat  the  obvious  intention  of  the  article.  Such  an  interpretation 
would  not  consist  with  those  rules  which,  from  time  immemorial, 
have  guided  courts,  in  their  construction  of  instruments  brought 
under  their  consideration.  It  must,  therefore,  be  discarded.  Every 
part  of  the  article  must  be  taken  into  view,  and  that  construction 
adopted  which  will  consist  with  its  words,  and  promote  its  general  in- 
tention. The  court  may  imply  a  negative  from  affirmative  words, 
where  the  implication  promotes,  not  where  it  defeats  the  intention. 

If  we  apply  this  principle,  the  correctness  of  which  we  believe 
will  not  be  controverted,  to  the  distributive  clause  under  considera- 
tion, the  result,  we  think,  would  be  this:  the  original  jurisdiction 
of  the  supreme  court,  in  cases  where  a  state  is  a  party,  refers  to 
those  cases  in  which,  according  to  the  grant  of  power  made  in  the 
preceding  clause,  jurisdiction  might  be  exercised  in  consequence  of 
the  character  of  the  party,  and  an  original  suit  might  be  instituted 
in  any  of  the  federal  courts;  not  to  those  cases  in  which  an  original 
suit  might  not  be  (399)  instituted  in  a  federal  court.  Of  the  last 
description,  is  every  case  between  a  state  and  its  citizens  and  perhaps, 

111 


CONSULAK  CASES 

every  case  in  which  a  state  is  enforcing  its  penal  laws.  In  such  cases, 
therefore,  the  supreme  court  cannot  take  original  jurisdiction.  In 
even'  other  case,  that  is,  in  everj^  case  to  which  the  judicial  power 
extends,  and  in  which  original  jurisdiction  is  not  expressly  given, 
that  judicial  power  shall  be  exercised  in  the  appellate,  and  only  in 
the  appelhite  form.  The  original  jurisdiction  of  this  court  cannot 
be  enlarged,  but  its  appellate  jurisdiction  may  be  exercised  in  every 
ease  cognizable  under  the  third  article  of  the  constitution,  in  the 
federal  courts,  in  which  original  jurisdiction  cannot  be  exercised ;  and 
the  extent  of  this  judicial  power  is  ^o  be  measured,  not  by  giving 
the  aflSrmative  words  of  the  distributive  clause  a  negative  operation 
in  every  possible  case,  but  by  giving  their  true  meaning  to  the  words 
which  define  its  extent/ 

COLEBROOK  v.  JONES,  (1751,  Great  Britain) 
Dickens  154. 
Hardivicke,  Chancery. 

The  plaintiff  was  consul  abroad:  the  defendant  applied,  that  he 
might  give  security  to  answer  costs,  according  to  the  course  of  the 
court.  Lord  Hardwicke  c.  said,  he  must  consider  the  plaintiff  as  a 
land  or  sea  officer  in  the  service  of  his  Majesty,  and  therefore  would 
not  grant  it.' 

COMMONWEALTH  v.  DI  SILVESTRO,  (1906,  U.  S.— Italy) 

31  Pa.  Super.  Ct.  537. 

Orlady,  Superior  Court  of  Pennsylvania. 

(553)  (Extract)  Though  some  abuses  were  alleged  relating 
to  fees  to  be  charged  in  conducting  the  affairs  of  the  office  of  consul, 
they  relate  to  possible  rights  of  persons  having  business  relations 
with  a  foreign  official  and  in  regard  to  which  none  of  our  citizens 
could  be  concerned.  Nor  would  our  public  be  interested  in  the  ex- 
pending of  the  moneys  furnished  by  the  Italian  government  to  its 
consul  for  its  home  military  purposes.  The  redress  for  such  griev- 
ances would  be  affected  through  channels  over  which  our  laws  would 
not  have  any  control. 

COMMONWEALTH  v.  KOSLOFF,  (1816,  U.  S.— Russia) 

5  S.  &  K.   54.-,. 

Tilghman,  Court  of  City  of  Philadelphia. 


'  [The  above  is  but  a  short  extract  from  the  opinion,  the  whole  of  which 
is  most  important  for  understanding  the  jurisdiction  of  the  federal  courts  over 
consuls. — Ed.] 

'  [This  is  all  the  reports  contain  about  this  case. — Ed.] 

112 


CONSULAR  CASES 

It  seems,  a  consul-general  is  not  protected,  by  the  law  of  nations,  from  a 
prosecution  and  indictment  for  a  rape. 

But  the  state  courts  have  no  jurisdiction  in  such  case:  exclusive  jurisdiction 
18  vested  in  the  courts  of  the  United  States,  (a) 

TILGHMAN,  C.  J.  The  grand  inquest  for  the  city  and  county 
of  Philadelphia  having  preferred  a  bill  of  indictment  for  a  rape, 
against  Nicholas  Kosloff,  consul  general  of  his  Imperial  Majesty  the 
Emperor  of  Russia,  a  motion  has  been  made  to  quash  that  indictment 
for  want  of  jurisdiction  in  this  court.  Two  causes  are  assigned  for 
our  want  of  jurisdiction.  1.  That  the  privilege  of  immunity  from 
criminal  prosecutions  is  conferred  on  consuls  by  the  law  of  nations. 
2.  That  by  the  Constitution  and  Laws  of  the  United  States,  ex- 
clusive jurisdiction  in  all  cases  affecting  consuls,  is  vested  in  the 
courts  of  the  United  States. 

1.  It  is  granted,  that  by  the  modern  law  of  nations,  ambass- 
adors and  other  public  ministers  are,  in  general,  exempt  from  crim- 
inal prosecutions.  Perhaps,  there  are  some  offenses,  such  as  an 
attempt  on  the  life  of  the  sovereign  with  whom  they  reside,  which 
would  warrant  their  punishment.  But  in  everything  short  of  an  ex- 
treme case,  it  is  more  conducive  to  the  peace,  and  more  agreeable  to 
the  usage  of  nations,  to  send  them  to  their  own  sovereign,  to  receive 
from  him  the  punishment  they  deserve.  It  has  not  been  contended, 
that  a  consul  is  a  public  minister ;  but  it  is  said,  that  a  consul-general, 
such  as  Mr.  Kosloff,  is  prohibited  from  exercising  trade  and  commerce, 
and  entrusted  with  important  concerns  from  his  sovereign,  and  so 
nearly  resembles  a  public  minister,  that  he  is  entitled  to  some  of  his 
prerogatives,  and  in  particular,  to  exemption  from  criminal  prosecu- 
tion. In  (546)  considering  this  case,  we  must  exclude  from  our 
view,  the  august  personage  to  whom  allusion  was  made  in  the  argu- 
ment. Considering  his  high  character,  and  the  intimacy  of  the  rela- 
tions to  be  preserved  with  him,  there  is  but  one  voice — one  wish. 
These  considerations  would  have  their  deserved  weight  in  the  proper 
place.  But  before  us  there  is  only  a  naked  question  of  right,  in 
which  all  nations  are  equally  concerned;  for  we  cannot  but  see, 
that  that  which  is  granted  as  the  right  of  one,  must  be  conceded  as 
the  right  of  all. 

The  law  of  nations  is  sought  for  in  the  usages  of  nations;  in 
the  opinions  of  approved  authors;  in  treaties;  and  in  the  decisions 
of  judges.  With  regard  to  the  privileges  of  consuls,  there  is  some 
difference  of  opinion,  among  respectable  authors.  Wicquefort,  Byn. 
kershoek  and  Martens  allow  to  a  consul  no  privilege  against  suits 
civil  or  criminal;  and  the  reason  they  assign  is,  that  consuls  in  no 

(a)  See  Davis  v.  Packard,  7  Pet.  276;  Sagory  v.  Wissman,  2  Ben.  240. 

113 


CONSULAR  CASES 

maimer  represent  the  ]Hn'son  of  their  sovereign,  but  are  sent  for  the 
purpose  of  assisting  his  subjects,  particuhirly  in  matters  of  commerce, 
and  sometimes  of  deciding  disputes  which  may  arise  between  them, 
by  permission  of  the  government  in  whose  dominions  they  reside. 
(See  Wioquef.  L'  Amhassadeur,  Book  1,  p.  65.  Bynk.  de  foro  lega- 
torum,  chap,  10,  p.  113,  Barbeyrac's  translation  into  French.  Mar- 
ten's summary  of  the  law  of  nations,  book  iv.  chap.  3.  sect.  8.)  Op- 
posed to  them,  is  Vattel,  who,  although  he  does  not  assert,  that  a 
consul  is  entitled  to  the  privileges  of  a  public  minister  in  general,  is 
yet  of  opinion,  that  from  the  nature  of  his  functions,  "he  should  be 
independent  of  the  ordinary  criminal  justice  of  the  place  w^here  he 
resides,  so  as  not  to  be  molested  or  imprisoned,  unless  he  himself 
violates  to  the  law  of  nations  by  some  uncommon  crime,  Vatt,  book 
ii.,  chap,  2,  sect,  34,  I  am  not  quite  sure  what  is  meant  by  vio- 
lating the  law  of  nations,  in  this  passage.  Crimes  against  the  law 
of  nations,  are  sometimes  understood  to  be,  crimes  which  all  nations 
agree  to  punish.  Such  are  murder  and  rape,  among  the  civilized 
nations :  and  if  that  be  the  meaning  of  Vattel,  his  authority  would  not 
exempt  the  consul  from  the  present  prosecution. 

But  what  is  of  more  weight  than  the  judgment  of  authors, 
however  respectable,  is  the  opinion  and  the  practice  of  our  own 
government,  and  that  of  the  foreign  nations  with  whom  we  have 
had  intercourse.  We  have  had  treaties  with  France,  Spain,  Great 
Britain,  Plolland.  Prussia  and  (547)  Sweden,  in  all  of  which  the 
subject  of  consuls  has  been  introduced,  and  in  not  one  of  which 
have  consuls  been  protected  from  suits  civil  or  criminal,  I  say  nothing 
of  our  treaties  with  the  Barbary  powers,  because  there  are  special 
reasons  why  all  nations  who  send  consuls  to  them,  take  care  to  pro- 
vide expressly  for  their  personal  security.  In  the  treaty  with  Great 
Britain,  made  in  1794,  consuls  are  expressly  declared  to  be  subject 
to  punishment  by  the  law  of  the  country  in  which  they  reside.  By 
the  consular  convention  with  France,  in  1788,  there  is  to  be  full  and 
perfect  immunity,  concerning  the  chancery  and  its  papers,  but  the 
house  of  the  consul  is  to  be  no  asylum  for  persons  or  effects.  And 
in  our  other  treaties,  the  most  that  is  stipulated  in  favor  of  consuls  is, 
that  they  shall  rospeotively  enjoy  the  same  prerogatives  and  favors, 
that  are  granted  to  those  of  the  most  favored  nations.  These  treaties 
afford  a  strong  proof  of  the  usage  of  nations — for  it  cannot  be  sup- 
posed, that  thfy  should  have  omitted  to  secure  consuls  from  criminal 
prosecutions,  if  it  had  been  thought  desirable,  or  usual,  to  afford 
them  that  protection. 

But  there  is  not  wanting  more  direct  proof  of  the  opinion  of  our 
owTi  government.     In  the  "act  for  the  punishment  of  certain  crimes 

114 


CONSULAR  CASES 

against  the  United  States,"  passed  April  30,  1790,  penalties  are  in- 
flicted on  persons  who  sue  out  process  from  any  court,  against  an 
ambassador  or  other  public  minister — but  the  act  is  silent  as  to 
consuls.  And  what  is  direct  to  the  point,  the  9th  sect,  of  the  "act 
to  establish  the  judicial  courts  of  the  United  States"  (passed  Septem- 
ber 24,  1789)  vests  the  district  courts  with  jurisdiction  of  offenses 
committed  by  consuls,  in  which  the  punishment  does  not  exceed  a 
fine  of  100  dollars,  etc.  Neither  are  we  left,  on  this  important  sub- 
ject, without  the  light  of  judicial  decision.  Mr.  Ravara,  consul  from 
Genoa,  was  indicted  and  convicted  for  a  misdemeanor,  in  the  circuit 
court  of  the  United  States.  2  Dall.  299.  He  was  defended  by  able 
counsel,  who  contended  for  his  privilege,  on  the  authority  of  Vattel. 
But  the  court  decided  against  him,  and  it  is  worthy  of  remark,  that 
Ch,  J.  Jay  presided,  who  had  been  long  employed  in  a  diplomatic 
function  of  a  high  grade  at  the  court  of  Madrid,  and  was  one  of  the 
ministers  of  the  United  States  who  negotiated  the  treaty  which 
established  our  independence,  at  Paris.  No  person,  certainly,  had 
better  opportunities  of  knowing  the  usage  of  nations,  or  a  (548) 
better  capacity  for  improving  these  opportunities.  From  all  these 
considerations,  I  cannot  hesitate  in  the  opinion,  that  there  is  nothing 
in  the  law  of  nations,  which  protects  the  consul-general  of  Russia 
from  this  indictment. 

2.  A  more  difficult  question  remains  to  be  considered:  Is  the 
jurisdiction  of  this  court  taken  away  by  the  constitution  and  laws  of 
the  United  States?  Before  I  go  into  an  examination  of  the  consti- 
tution and  laws,  it  may  not  be  improper  to  say  a  Avord  or  two  re- 
specting the  subject  in  which  this  question  arises.  An  agent  of  a 
foreign  government,  accused  of  a  crime  committed  in  the  state  of 
Pennsylvania,  claims,  not  an  exemption  from  trial,  but  the  right  of 
being  tried  by  a  court  of  the  United  States.  His  public  relations 
are,  not  with  the  state  of  Pennsylvania,  but  with  the  government 
of  the  United  States:  and  if  the  emperor  of  Russia  should  suppose 
that  he  had  cause  to  complain  of  our  treatment  of  his  officer,  he  must 
address  himself,  not  to  the  governor  of  Pennsylvania,  but  to  the 
president  of  the  United  States.  But  even  where  there  was  a  cause 
of  complaint,  cases  may  be  easily  supposed,  in  which  the  president 
might  think  it  more  conducive  to  the  peace  of  the  nation,  to  send  a 
foreign  agent  out  of  the  country,  to  be  punished  by  his  own  sovereign, 
than  to  inflict  punishment  on  him,  by  our  own  laws,  here. 

These  considerations  are  so  manifest,  that  when  the  people  of 
the  United  States  were  about  to  form  a  federal  government,  through 
which  alone  they  were  to  maintain  an  intercourse  with  foreign  na- 
tions, it  would  have  seemed  a  want  of  common  prudence,  not  to  com- 

115 


CONSULAR  CASES 

mit  to  that  government  the  management  of  all  affairs  respecting  the 
public  agents  of  those  nations.  Let  us  now  advert  to  the  instrument 
of  our  Federal  Union,  and  we  shall  soon  perceive,  that  the  statesmen 
who  framed  it  were  perfectly  aware  of  the  importance  of  placing  all 
public  foreign  agents,  consuls  included,  under  the  complete  superin- 
tendence of  the  federal  government.  It  was  through  the  judicial 
power  that  those  persons  could  principallj^  be  affected.  Accordingly, 
we  find  it  provided  by  the  2d  sect,  of  the  3d  article  of  the  constitu- 
tion, that  the  judicial  power  shall  extend  "to  all  cases  affecting  am- 
bassadors, other  public  ministers  and  consuls."  Words  more  com- 
prehensive cannot  be  devised.  They  include  suits  of  every  kind,  civil 
and  criminal.  This  is  not  denied  by  the  attorney-general  of  Penn- 
sylvania, nor,  as  I  (549)  understand,  is  it  denied,  that  by  virtue  of 
this  provision,  congress  had  a  right  to  declare  by  law,  that  in  no 
case,  civil  or  criminal,  should  a  state  court  have  jurisdiction  over  a 
consul.  But  it  is  contended,  that  until  congress  does  by  law  de- 
clare so,  the  state  courts  have  concurrent  jurisdiction  with  the  courts 
of  the  United  States;  or  rather,  that  in  the  case  before  us,  the  state 
courts  alone  have  jurisdiction,  because,  congress  having  passed  no 
law  defining  the  crime  or  the  punislmient  of  rape,  the  courts  of  the 
United  States  cannot  take  cognisance  of  the  offense. 

The  constitution,  in  the  1st  section  of  the  3d  article,  declares 
in  what  courts  the  judicial  power  shall  be  vested,  viz:  "in  one  su- 
preme court,  and  in  such  inferior  courts  as  the  congress  may  from 
time  to  time  ordain  and  establish."  In  the  2d  section,  it  enumerates 
the  different  cases  to  which  the  judicial  power  shall  extend,  and  then 
goes  on  to  direct  the  distribution  of  that  power  among  the  different 
courts.  "In  all  cases  affecting  ambassadors,  other  public  ministers 
and  consuls,  and  those  in  which  a  state  shall  be  a  party,  the  supreme 
court  shall  have  original  jurisdiction :  in  all  the  other  cases  before 
mentioned,  the  supreme  court  shall  have  appellate  jurisdiction,  both 
as  to  law  and  fact,  with  such  exceptions  and  under  such  restrictions 
as  the  congress  shall  make."  Thus  the  judicial  power,  extending 
to  all  cases  affecting  consuls,  and  that  portion  of  it  which  respects 
consuls,  being  vested  in  the  supreme  court,  it  follows,  that  as  soon 
as  the  supreme  court  was  organized  by  law,  it  became  immediately 
vested  with  original  jurisdiction  in  every  case  by  which  a  consul 
might  ])e  affected.  But  was  this  an  exclusive  jurisdiction?  The 
opinion  of  the  supreme  court,  Marbury  v.  Madison,  1  Cranch  137, 
goes  far  towards  establishing  the  principle  of  exclusive  jurisdiction. 
The  point  decided  in  that  ease,  was,  that  where  the  constitution  had 
vested  the  supreme  court  with  appellate  jurisdiction,  it  was  not  in 
the  power  of  congress  to  give  it  original  jurisdiction;  and  the  whole 

116 


CONSULAR  CASES 

scope  of  the  argument  maintained  in  the  court's  opinion  goes  to 
prove,  that  where  the  constitution  had  given  original  jurisdiction, 
it  was  not  in  the  power  of  congress  to  give  appellate  jurisdiction. 
This  will  appear  from  the  following  extract  from  that  opinion.  "If 
congress  remains  at  liberty  to  give  this  court  appellate  jurisdiction, 
where  the  constitution  has  declared  their  jurisdiction  shall  be  orig- 
inal, the  (550)  distribution  of  jurisdiction  made  in  the  constitution, 
is  form  without  substance.  Affirmative  words  are  often,  in  their 
operation,  negative  of  other  objects  than  those  affirmed,  and  in  this 
ease,  a  negative  or  exclusive  sense  must  be  given  them,  or  they  have 
no  operation  at  all." 

"If  the  solicitude  of  the  Convention,  with  respect  to  our  peace 
with  foreign  powers,  induced  a  provision  that  the  supreme  court 
should  take  original  jurisdiction  in  cases  which  might  be  supposed 
to  affect  them;  yet  the  clause  would  have  proceeded  no  further  than 
to  provide  for  such  cases,  if  no  further  restriction  on  the  power  of 
congress  had  been  intended.  That  they  should  have  appelate  juris- 
diction in  all  other  cases,  with  such  exceptions  as  congress  might 
make,  is  no  restriction,  unless  the  words  be  deemed  exclusive  of 
original  jurisdiction."  Now  taking  this  to  be  the  construction  of 
the  constitution,  all  these  parts  of  the  "act  to  establish  the  judicial 
courts  of  the  United  States,"  which  vest  jurisdiction  in  cases  affect- 
ing consuls,  in  the  district  or  circuit  courts,  would  be  unconstitutional 
and  void.  And,  if  it  was  intended  by  the  constitution,  that  no  in- 
ferior court  of  the  United  States  should  have  jurisdiction,  it  cannot 
be  supposed  that  a  state  court  was  to  have  it,  because  there  is  much 
stronger  reason  for  denying  it  to  the  state  courts,  than  to  the  inferior 
courts  of  the  United  States. 

It  will  be  perceived,  that  this  principle  shakes  the  decision  in  the 
case  of  Ravara,  who  was  convicted  in  the  circuit  court,  though  not 
that  part  of  the  decision  which  respects  the  privilege  of  a  consul. 
But  if  the  two  eases  cannot  be  reconciled,  the  circuit  courts  must  give 
way.  Supposing  however,  for  argument's  sake,  that  the  constitution 
does  not  vest  the  supreme  court  with  exclusive  jurisdiction;  let  us 
see  whether  congress  has  not  excluded  the  state  courts  by  the  judi- 
ciary act  passed  24th  September,  1789.  By  the  9th  section,  the  dis- 
trict courts  are  vested,  exclusively  of  the  courts  of  the  several  states, 
with  the  cognizance  of  "all  crimes  and  offenses  that  shall  be  cogniz- 
able under  the  authority  of  the  United  States,  committed  within  their 
respective  districts,  where  no  other  punishment  than  whipping,  not 
exceeding  thirty  stripes,  a  fine  not  exceeding  100  dollars,  or  a  term 
of  imprisonment  not  exceeding  six  months,  is  to  be  inflicted."  Con- 
suls are  embraced  in  this  jurisdiction,  as  plainly  appears  by  consid- 

117 


CONSULAR  CASES 

ering  the  whole  section,  and  as  was  declared  by  this  court,  in  Mann- 
hardt  v.  Soderstrom  (1  Binn.  (551)  138),  Then  comes  the  11th  sec- 
tion, by  which  the  circuit  courts  are  vested  with  exclusive  cognizance 
of  "all  crimes  and  offenses  cognizable  imder  the  authority  of  the 
United  States,  except  where  the  said  act  otherwise  provides,  or  the 
laws  of  the  United  states  shall  otherwise  direct,  and  concurrent  juris- 
diction with  the  district  courts,  of  the  crimes  and  offenses  cognizable 
therein."  Does  not  this  exclude  the  state  courts  from  jurisdiction 
in  the  case  of  consuls?  The  only  argument  attempted,  or  that  can 
be  devised,  in  support  of  the  negative,  is,  that  no  offense  is  cognizable 
in  any  court  of  the  United  States,  until  congress  has  declared  it  to 
be  an  offense,  and  prescribed  the  pimishment.  This  is  the  only  con- 
sideration which  ever  had  the  least  weight  in  my  mind.  But  upon 
mature  reflection,  I  am  unable  to  deny,  that  the  courts  of  the  United 
States  can  take  cognizance,  when  I  find  it  written  in  the  constitu- 
tion, that  the  supreme  court  shall  have  jurisdiction  in  all  cases  af- 
fecting a  consul.  Is  he  not  affected  in  criminal  cases,  much  more 
than  in  civil?  How  then  can  I  say,  that  the  supreme  court  has  no 
jurisdiction?  But  how,  or  by  what  law  is  he  to  be  punished,  in  case 
of  conviction?  Shall  he  be  punished  by  the  law  of  Pennsylvania, 
where  the  offense  was  committed,  inasmuch  as  there  is  no  other  ex- 
press law  which  reaches  this  case?  And  is  it  on  account  of  the 
person  only  that  jurisdiction  is  given  to  the  courts  of  the  United 
States.  Does  the  34th  section  of  the  judiciary  act  apply  to  the  pun- 
ishment of  offenses,  by  which  it  is  enacted,  "that  the  laws  of  the 
several  states,  except  where  the  constitution,  treaties  or  statutes  of 
the  United  States  shall  otherwise  require  or  provide,  shall  be  re- 
garded as  rules  of  decision  in  trial  at  common  law,  in  the  courts  of 
the  United  States,  in  eases  where  they  apply?"  May  a  person  con- 
victed in  a  court  of  the  United  States,  of  a  crime  of  the  highest  grade, 
concerning  which  congress  has  made  no  provision,  be  punished,  ac- 
cording to  the  opinion  of  Judge  Story,  in  United  States  v.  Coolidge, 
1  Gallison  488,  by  fine  and  imprisonment,  on  the  principles  of  the 
common  law.  Or  is  the  constitution  to  be  so  construed,  as  to  exclude 
the  jurisdiction  of  all  inferior  courts,  and  yet  suffer  the  authority 
of  the  supreme  court  to  lie  dormant,  imtil  called  into  action  by  a 
law  which  shall  form  a  criminal  code  on  the  subject  of  consuls? 
These  are  questions  which  may  embarrass  those  who  have  to  answer 
them,  but  are  not  (552)  necessary  to  be  answered  here.  No  em- 
barrassment, however,  could  equal  that  into  which  this  court  would 
be  throwTD,  should  it  determine,  that  no  court  of  the  United  States 
has  jurisdiction,  in  a  case  which  affects  a  consul  in  every  thing  short 
of  life,  when  the  constitution  declares,  that  the  supreme  court  shall 

118 


CONSULAR  CASES 

have  jurisdiction  in  all  cases  affecting  him.  Upon  full  consideration, 
I  am  of  opinion,  that  the  indictment  should  be  quashed,  because 
this  court  has  no  jurisdiction. 

BRACKENRIDGE,  J.,  concurred  in  the  opinion  to  quash  the 
indictment,  because  exclusive  jurisdiction  was  vested  in  the  courts  of 
the  United  States.  Concerning  the  privileges  of  a  consul,  he  did  not 
think  it  necessary  to  give  an  opinion. 

Indictment  quashed. 

CONSERVA,  THE,  (1889,  U.  S.— Dominican  Republic) 

38  Fed.  Rep.  431. 

Benedict,  District  Court. 

(434)      (Extract)     In  disposing  of  the  case  it  will  be  convenient 
at  first  to  consider  the  point  taken  by  the  district  attorney,  that,  the 
claim  having  been  excepted  to,  the  libel  must  be  sustained  because  of 
insufficient  proof  of  such  an  interest  in  the  ship  as  entitled  the  con- 
sul of  the  Dominican  republic  to  intervene  in  behalf  of  the  Dominican 
government.     Here  there  seems  to  be  some  misapprehension.     This 
is  not  a  case  of  property  seized  by  the  collector,  nor  of  the  property 
captured  as  prize,  or  taken  by  any  kind  of  executive  seizure,  but  a  sim- 
ple case  in  admiralty,  where  the  decree  will  be  either  a  decree  dis- 
missing the  libel,  or  condemning  the  vessel.     In  such  cases  I  do  not 
imderstand  that  any  decree  of  restitution  is  necessary.     If  the  decree 
be  adverse  to  the  libelant,  the  decree  is  simply  that  the  libel  be  dis- 
missed, and  the  vessel  discharged  from  the  custody  of  the  marshal. 
In  such  a  case  the  intervention  of  a  consul  in  behalf  of  his  govern- 
ment, intervening  for  its  interest  in  the  vessel  seems  to  me  entirely 
proper.     The  more  so  in  this  case  because  it  appears  that  the  gov- 
ernment of  the  Dominican  republic  has  no  representative  here  except 
the  consul  who  has  intervened.     In  numerous  instances  the  interven- 
tion of  a  consul  in  the  interest  of  citizens  of  his  own  country  has 
been  permitted.     No  reason  is  seen  for  refusing  such  permission  when 
the  intervention  is  in  behalf  of  his  own  government.     London  Packet, 
1  Mason,  14;  The  Adolph,  1  Curt.  87;  The  Bello  Corrunes,  6    Wheat. 
166.     Such  action  on  the  part  of  the  consul  has  nothing  to  do  with 
negotiations  with  foreign  states,  nor  is  it  an  attempt  to  vindicate  any 
prerogative  of  government.     He  simply  represents  his  government  as 
having  an  interest  in  the  vessel  proceeded  against.     Such  interest  is 
shown  in  this  instance  by  a  bill  of  sale,  whereby  the  legal  title  of  the 
vessel  proceeded  against  has  been  passed  to  the  government  of  the 
Dominican  republic.     This  is  proof,  in  my  opinion,  sufficient  to  per- 
mit the  intervention  of  the  consul  for  the  purpose  of  contesting  the 
question  of  forfeiture  that  has  been  raised  by  the  libel.     In  the  case 

119 


CONSULAR  CASES 

of  The  Meteor,  Judge  Betts  declined  to  entertain  a  similar  objection 
to  the  cLiim,  upon  the  ground  that  the  issue  was  immaterial  in  cases 
of  this  description,  and  the  point  was  not  pressed  on  the  appeal. 

COOKE  V.  WILBY,  (1884,  Great  Britain) 

25  Law  Kep.,  Chancery  Div.  770;  53  L.  J.  Ch.  592. 

Chitty,  Chancery  Division. 

(Extract)     This  was  an  ex  parte  application  for  leave  to  file 
an  affidavit  which  had  been  sworn  before  a  notary  pubhc  at  Birming- 
ham, in  the  state  of  Alabama,  U.  S.  A. 
•  *  *  *  *  *  *  *  * 

CHITTY,  J'.*  *  *  Although  there  is  a  general  provision  in 
order  xxxviii,  rule  6,  as  to  the  swearing  of  affidavits  in  foreign  parts 
out  of  Her  JMajesty's  dominions  before  any  of  Her  Majesty's  consuls, 
or  vice-consuls,  there  is  no  special  provision  applicable  to  a  case  where 
there  is  no  consul  or  vice-consul  within  150  miles  of  the  deponent's 
residence. 

In  my  opinion  it  would  be  an  unreasonable  construction  of  the 
rule  to  say  that  the  deponent  must  travel  150  miles  in  order  to  swear 
his  affidavit.  I  hold,  therefore,  that  the  old  practice  so  far  as  re- 
gards this  particular  application  is  still  in  force,  and  that  this  affi- 
davit may  be  filed. 

COOPER,  IN  RE  ANNE,  (1855,  Great  Britain) 

16  Common  Bench  225. 

Per  Curiam,  Common  Pleas. 

(Extract)  The  statutes  6  G.  4;  C.  87;  S.  20,  did  not  authorize 
the  British  consul  at  Paris  to  take  this  affidavit.  We  cannot,  there- 
fore, receive  it. 

[The  affidavit  upon  which  the  motion  was  made  was  sworn  be- 
fore the  British  consul  at  Paris. — Ed.] 

COPPELL  v.  HALL,  (1868,  U.  S.— Great  Britain) 

7  Wall.  542 ;  19  L.  Ed.  246. 

Sivayne,  Supreme  Court. 

(Syllabus)  A  contract  made  by  a  consul  of  a  neutral  power,  with  the  citizen 
of  a  belligerent  state,  that  he  will  "protect,"  with  his  neutral  name,  from  cap- 
ture by  the  belligerent,  merchandise  which  such  citizen  has  in  the  enemy's  lines, 
is  against  public  policy  and  void. 

CORIOLANTJS,  THE,  (18.39,  U.  S.) 
Crabbp,  2.39;  Fed.  Cases  7,380. 

Hopkinson,  District  Court. 

120 


CONSULAR  CASES 

Imprisonment  of  seamen. 
Value  of  consul's  certificate. 

(Extract)  On  the  second  day  after,  when  it  might  be  sup- 
posed the  matter  was  all  over  and  forgotten,  and  nothing  had  oc- 
curred in  the  meantime  to  show  any  danger  from  it,  a  boat  is  sent  to 
the  ship  with  a  police  officer,  and  the  man  carried  off  to  prison,  with- 
out a  hearing,  or  any  examination  of  the  circumstances  of  the  case, 
except  such  as  the  captain  chose  to  give  to  the  consul.  And  here 
I  would  again  correct  an  error  into  which  captains  are  continually 
falling.  They  seem  to  believe  that  if  they  can  get  the  consent  or 
co-operation  of  the  consul  to  their  proceedings,  it  will  be  a  full  justi- 
fication for  them,  when  they  come  home.  I  wish  them  to  under- 
stand that  I  will  judge  for  myself,  after  hearing  both  parties  and 
their  evidence,  of  the  necessity  and  propriety  of  these  summary  in- 
carcerations; and  the  part  the  consul  may  have  taken  in  it,  will 
have  very  little  weight  with  me.  In  all  my  experience,  I  have  never 
known  a  consul  refuse  the  application  of  a  captain  to  imprison  a 
seaman,  nor  to  furnish  a  certificate,  duly  ornamented  with  his  official 
seal,  of  the  offense  committed,  of  which  he  generally  knows  nothing 
but  from  the  representations  of  the  captain  or  officers  of  the  vessel. 
I  never  suffer  these  certificates  to  be  read :  they  are  infinitely  weaker 
than  ex  parte  depositions.  Our  consuls,  unfortunately,  are  mer- 
chants also;  their  profits  and  their  living  depend  upon  the  business 
they  can  do  ,  especially  by  the  consignments  of  cargoes  to  them.  It 
is,  therefore,  very  important  to  them  to  have  the  good  will  of  the 
captains  of  vessels,  who  may  make  a  good  report  of  them  to  their 
owTiers. 

COURTNEY,  THE,  (1810,  Great  Britain) 

Edwards.  241. 

Sir  William  Scott,  High  Court  of  Admiralty, 

[Seems  to  infer  that  the  consent  of  the  "accredited  agent  of 
their  government"  was  requisite  before  the  court  would  take  juris- 
dictions of  suits  for  wages. 

Also  seems  to  refer  to  consul  when  speaking  of  the  "represen- 
tatives of  the  United  States."  In  this  place  if  the  American  minis- 
ter was  meant  it  would  seem  that  he  would  have  been  referred  to  as 
minister. — Ed.] 

CRUTTENDEN  v.  BOTJRBEIL,  (1808,  Great  Britain) 

1   Taunt.    144. 

Per  Curiam,  Court  of  Common  Pleas. 

121 


CONSULAR  CASES 

(Extract)  There  is  no  rule  of  court  expressly  applying  to  the 
case  of  fines  levied  by  persons  resident,  abroad;  but  the  rule  relative 
to  recoveries  suffered  by  persons  under  these  circumstances,  has  al- 
ways been  held  to  extend  to  the  case  of  fines.  By  that  rule,  (Hilary 
term.  14  Geo.  3)  it  was  ordered,  that  "if  the  party  or  parties  shall  be 
in  Ireland,  or  any  other  parts  beyond  the  seas,  then  the  affidavit  or 
affidavits  shall  be  made  by  one  of  the  commissioners  who  hath  taken 
the  acknowledgment  of  such  warrant  or  warrants  of  attorney,  and 
shall  be  sworn,  either  before  some  person  duly  authorized  to  take 
affidavits  in  this  court,  or  before  some  magistrate  of  the  place  where 
such  acknowledgement  shall  be  taken,  having  authority  to  administer 
on  oath,  and  in  the  presence  of  a  public  notary;  which  notary  shall 
also  certify'  in  writing  under  his  hand  and  seal,  as  well  the  due  ad- 
ministering of  the  said  oath,  as  also  the  name,  signature,  and  office 
of  the  magistrate  administering  the  same."  In  this  case  the  certificate 
is  not  under  seal;  neither  is  it  stated  that  the  notary  was  present 
when  the  oath  was  taken,  or  that  the  mayor  of  Neufchatel  had 
authority  to  administer  an  oath. 

DAINESE  V.  HALE,  (1875,  U.  S.) 

91  U.  S.  13. 

Bradley,  Supreme  Court. 

(15)  (Extract)  It  cannot  be  contended  that  every  consul,  by 
virtue  of  his  office,  has  power  to  exercise  the  judicial  functions  claimed 
by  the  defendant ;  for  it  is  conceded  that  this  is  not  the  case  in  Chris- 
tain  countries.  And  whilst,  on  the  other  side,  it  is  also  conceded  that 
in  pagan  and  IMohometan  countries  it  is  usual  for  the  ministers  and 
consuls  of  European  states  to  exercise  judicial  functions  as  between 
their  fellow-subjects  or  citizens,  it  clearly  appears  that  the  extent  to 
which  this  power  is  exercised  depends  upon  treaties  and  laws  regu- 
lating such  jurisdiction.  The  instructions  given  by  the  British 
foreign  office  to  their  consuls  in  the  Levant  in  1844,  as  quoted  by 
Mr.  Phillimore.  do  not  claim  anything  more.     They  say, — 

"The  rifjht  of  British  consular  officers  to  exercise  any  jurisdiction  in  Tur- 
key in  matters  which  in  other  countries  come  exclusively  under  the  control  of  the 
local  mapnstracy  depends  originally  on  the  extent  to  which  that  right  has  been 
conceded  by  the  sultans  of  Turkey  to  the  British  crown;  and,  therefore,  the  right 
is  strictly  limited  to  the  terms  in  which  the  concession  is  made.  The  right  de- 
y»ends,  in  the  next  place,  on  the  extent  to  which  the  queen,  in  the  exercise  of 
the  power  vested  in  her  majesty  by  act  of  yjarliament,  may  be  pleased  to  grant 
to  any  of  her  consular  servants  authority  to  exercise  jurisdiction  over  British 
subjects."      Int.    Law,   vol.    II.    p.    27.3,    sec.   276. 

Historically,    it    is   undoubtedly   true,    as   shown   by   numerous 

122 


CONSULAR  CASES 

authorities  quoted  by  Mr.  Warden  in  his  treatise  on  "The  Origin 
and  Nature  of  Consular  Establishments,"  that  the  consul  Avas  orig- 
inally an  officer  of  large  judicial  as  well  as  commercial  powers,  exer- 
cising entire  municipal  authority  over  his  coimtrymen  in  the  country 
to  which  he  was  accredited.  But  the  (16)  changed  circumstances  oi 
Europe,  and  the  prevalence  of  civil  order  in  the  several  Christian 
states,  have  had  the  effect  of  greatly  modifying  the  powers  of  the 
consular  office ;  and  it  may  now  be  considered  as  generally  true,  that, 
for  any  judicial  powers  which  may  be  vested  in  the  consuls  accredited 
to  any  nation,  we  must  look  to  the  express  provisions  of  the  treaties 
entered  into  with  that  nation,  and  to  the  laws  of  the  states  which  the 
consuls  represent. 

DALLEMAGNE  v.  MOISAN,  (1904,  U.  S.— France) 

197  U.  S.  170. 

Pcckham,  Supreme  Court. 

Appeal  from  the  district  court  of  the  United  States  for  the  North- 
ern District  of  California. 

This  is  an  appeal  on  the  part  of  the  consul  general  of  the 
Republic  of  France  from  the  judgment  of  the  district  court  of  the 
United  States  for  the  Northern  District  of  California,  discharging  the 
defendant  ]\Ioisan  from  imprisonment. 

The  proceeding  arises  on  habeas  corpus,  to  inquire  into  the  valid- 
ity of  the  detention  of  defendant  in  the  city  prison  of  San  Francisco, 
in  the  state  of  California.  His  application  for  the  writ  was  address- 
ed to  the  district  court  of  the  United  States  for  the  Northern  Dis- 
trict of  California,  and  it  showed  that  he  was  a  citizen  of  France 
and  was  imprisnned  by  virtue  of  a  requisition  in  writing,  signed  by 
the  French  consul  general  residing  in  San  Francisco  and  addressed 
to  the  chief  of  police  of  San  Francisco,  California,  requiring  his  ar- 
rest as  one  of  the  crew  of  the  French  ship  Jacques,  then  in  that  port, 
on  account  of  his  insubordinate  conduct  as  one  of  such  crew.  (The 
requisition  contained  all  the  averments  of  facts  which  would  war- 
rant the  arrest  of  the  petitioner  under  the  provisions  of  the  treaty 
of  1853  between  the  United  States  and  France.)  The  petitioner 
also  averred  that  at  the  time  of  the  making  of  his  application  for  the 
A\Tit  the  ship  was  not  in  the  port  of  San  Francisco,  but  had  departed 
therefrom  some  time  before.  The  petitioner  was  arrested  by  the 
chief  of  police,  under  such  requisition,  on  the  first  day  of  May  1903, 
and  since  that  time  had  been  confined  in  the  city  prison  of  San 
Francisco.  He  asserted  that  his  imprisonment  was  illegal,  because 
the  facts  set  forth  did  not  confer  jurisdiction  upon  the  consul  or  the 

123 


CONSULAR  CASES 

chief  of  police,  or  either  of  them,  to  restrain  complainant  from  his 
liberty,  or  to  imprison  him. 

•  «******• 

(173)  *  *  ♦  Mr.  JUSTICE  PECKHAM,  after  making  the 
foregoing  statement  of  facts,  delivered  the  opinion  of  the  court. 

This  case  involves  the  construction  of  certain  language  in  the 
eighth  article  of  the  consular  convention  between  the  United  States 
and  France,  concluded  on  the  twenty-third  day  of  February,  1853, 
and  proclaimed  by  the  President  of  the  United  States  on  the  twelfth 
day  of  August,  1853,  the  whole  convention  being  still  in  full  force 
and  effect.  10  Stat.  992,  996.  The  article  is  reproduced  in  the 
margin. 

Article  VTIT.  The  respective  consuls  general,  consuls,  vice  consuls,  or 
consular  agents,  shall  have  exclusive  charge  of  the  internal  order  of  the  mer- 
chant vessels  of  their  nation,  and  shall  alone  take  cognizance  of  differences  which 
may  arise,  either  at  sea  or  in  port,  between  the  captain,  officers,  and  crew,  with- 
out exception,  particularly  in  reference  to  the  adjustment  of  wages  and  the  exe- 
cution of  contracts.  The  local  authorities  shall  not,  on  any  pretext,  interfere 
in  these  differences,  but  shall  lend  forcible  aid  to  the  consuls,  when  they  may 
ask  it,  to  arrest  and  imprison  all  persons  composing  the  crew  whom  they  may 
deem  it  necessary  to  confine.  Those  persons  shall  be  arrested  at  the  sole  request 
of  the  consuls,  addressed  in  writing  to  the  local  authority,  and  supported  by  an 
official  extract  from  the  register  of  the  ship  or  the  list  of  the  crew,  and  shall  be 
held,  during  the  whole  time  of  their  stay  in  the  port,  at  the  disposal  of  the  con- 
suls. Their  release  shall  be  granted  at  the  mere  request  of  the  consuls  made  in 
writing.  The  expenses  of  the  arrest  and  detention  of  those  persons  shall  be  paid 
by  the  consuls. 

The  first  objection  made  by  the  defendant  is  to  the  validity  of 
the  requisition  of  the  consul  general,  because  it  was  directed  to  the 
chief  of  police  of  San  Francisco,  he  being  an  officer  of  the  state  as 
distinguished  from  a  federal  officer,  the  defendant  contending  that 
a  federal  treaty  cannot  impose  on  a  state  officer,  as  such,  a  function 
violating  the  constitution  of  the  (174)  state  which  he  represents  in 
his  official  character.  It  has  long  been  held  that  power  may  be  con- 
ferred upon  a  state  officer,  as  such,  to  execute  a  duty  imposed  under 
an  act  of  congress,  and  the  officer  may  execute  the  same,  unless  its 
execution  is  prohibited  by  the  constitution  or  legislation  of  the  state. 
Prigg  V.  Pennsylvania,  16  Pet.  539,  622;  Robertson  v.  Baldwin,  165 
U.  S.  275.  As  to  the  objection  that  there  was  any  statute  or  any 
con.stitutional  provision  of  the  state,  prohibiting  the  execution  of 
the  power  conferred  by  the  treaty  upon  the  state  officer,  we  think 
it  unfounded.  "We  find  nothing  in  the  constitution  or  in  the  statutes 
of  California  which  forbids  or  would  prevent  the  execution  of  the 
power  by  a  state  officer,  in  case  he  were  willing  to  execute  it.     The 

124 


CONSULAR  CASES 

provisions  in  the  constitution  of  the  state,  cited;  by  counsel  for  de- 
fendant, relate  in  substance  only  to  the  general  proposition  that  no 
person  should  be  deprived  of  his  liberty  without  due  process  of  law. 
The  execution  of  a  treaty  between  the  United  States  and  a  foreign 
government,  such  as  the  one  in  question,  would  not  violate  any  pro- 
vision of  the  California  constitution;  the  imprisonment  is  not  pur- 
suat  to  a  conviction  of  crime  but  is  simply  a  temporary  detention  of 
a  sailor,  whose  contract  of  service  is  an  exceptional  one,  Robertson  v. 
Baldwin,  supra,  for  the  purpose  of  securing  his  person  during  the 
time  and  under  the  circumstances  provided  for  in  the  treaty,  as  con- 
cerning the  internal  order  and  discipline  of  the  vessel.  The  murder 
on  a  foreign  vessel,  while  in  one  of  the  ports  of  this  country,  of  one  of 
the  crew  of  such  vessel  by  another  member  of  that  crew  has  been 
held  not  to  come  within  the  terms  of  a  somewhat  similar  treaty  with 
Belgium,  because  the  crime  charged  concerned  more  than  the  inter- 
nal order  or  discipline  of  the  foreign  vessel.  Wildenhus's  case,  120 
U.  S.  1. 

The  chief  of  police  voluntarily  performed  the  request  of  the 
consul  as  contained  in  the  written  requisition,  and  the  arrest  was, 
therefore,  not  illegal  so  far  as  this  ground  is  concerned. 

There  is  another  difficulty,  however,  and  that  is  founded  upon 
the  provisions  of  the  statutes  of  the  United  States,  By  (175)  the 
act  of  congress,  approved  June  11,  1864,  13  Stat.  121  entitled  **An 
act  to  provide  for  the  execution  of  treaties  between  the  United  States 
and  foreign  nations  respecting  consular  jurisdiction  over  the  crews 
of  vessels  of  such  foreign  nations  in  the  waters  and  ports  of  the 
United  States,"  full  provision  was  made  for  the  execution  of  such 
treaties.  It  was  therein  provided  (section  second)  that  application 
for  the  arrest  might  be  made  "to  any  court  of  record  of  the  United 
States,  or  any  judge  thereof,  or  to  any  commissioner  appointed 
under  the  laws  of  the  United  States."  The  act  then  provided  for 
the  issuing  of  a  warrant  for  the  arrest  of  the  individual  complained 
of,  directed  to  the  marshal  of  the  United  States,  and  requiring  him 
to  arrest  the  individual  and  bring  him  before  the  court  or  person 
issuing  the  warrant,  for  examination,  and  if,  on  such  examination, 
it  appeared  that  the  matter  complained  of  concerned  only  the  internal 
order  or  discipline  of  the  foreign  ship,  the  court  should  then  issue  a 
warrant  committing  such  person  to  prison,  etc.  It  was  further  pro- 
vided that  no  person  should  be  detained  more  than  two  months  after 
his  arrest,  but  at  the  end  of  that  time  he  should  be  allowed  to  de- 
part and  should  not  again  be  arrested  for  the  same  cause.  The  act 
was  carried  forward,  in  substance,  into  the  Revised  Statutes  of  the 
United  States  as  sections  4079,  4080,  4081.     See  also  2  Comp.  Stat. 

125 


CONSULAR  CASES 

page  2776.  This  statute  having  been  passed  by  the  United  States 
for  the  purpose  of  executing  the  treaties  it  had  entered  into  with 
foreign  governments,  must  be  regarded  as  the  only  means  proper  to 
be  adopted  for  that  purpose.  Consequently,  the  requisition  of  the 
consul  general  should  have  been  presented  to  the  district  court  or 
judge,  etc.,  pursuant  to  the  act  of  congress,  and  the  arrest  should 
have  been  made  by  the  marshal  as  therein  provided  for.  Therefore 
the  arrest  of  the  seaman  by  the  chief  of  police  was  unauthorized. 
When,  however,  the  defendant  was  brought  before  the  District  Court 
of  the  United  States  upon  the  writ  of  habeas  corpus,  that  court  being 
mentioned  in  the  statute  as  one  of  the  authorities  to  issue  warrants 
for  the  arrest  of  the  (176)  individual  complained  of,  and  having 
power  under  the  statute  to  examine  into  the  question  and  to  commit 
the  person  thus  arrested  to  prison  according  to  the  provision  of  the 
act,  it  would  have  been  the  duty  of  the  court,  under  such  circum- 
stances, upon  the  production  of  the  defendant  under  the  writ,  and 
upon  the  request  of  the  consul,  to  have  made  an  examination,  and  to 
have  committed  the  defendant  to  prison  if  he  were  found  to  come 
under  the  terms  of  the  treaty.  It  was,  therefore,  but  a  formal  ob- 
jection to  the  regularity  of  the  arrest,  which  would  have  been  ob- 
viated by  the  action  of  the  court  in  examining  into  the  case,  and  the 
defendant  would  not  have  been  entitled  to  discharge  merely  because 
the  person  executing  the  warrant  was  not  authorized  so  to  do. 

The  important  question  remains  as  to  the  true  construction  of 
the  eighth  article  of  the  treaty,  with  reference  to  the  limitation  ot 
the  imprisonment  of  the  person  coming  within  its  terms.  The  district 
court  has  held  that  the  imprisonment  must  end  with  the  departure  of 
the  vessel  from  the  port  at  which  the  seaman  was  taken  from  the 
vessel.  This  we  regard  as  an  erroneous  construction  of  the  terms  of 
the  article. 

The  provisions  of  that  article  seem  to  us  plain,  and  they  refer 
to  the  imprisonment  of  the  seaman  and  his  detention  during  the 
time  of  his  stay  in  port,  and  the  language  does  not  refer  in  that  respect 
to  the  stay  of  the  ship  in  port.  The  treaty  provides  that  the  local 
authorities  shall  lend  forcible  aid  to  the  consuls  when  they  may  ask 
for  the  arrest  and  imprisonment  of  persons  composing  the  crew, 
whom  they  may  deem  it  necessary  to  confine.  The  language  has  no 
reference  whatever  to  the  ship,  and  they  (the  persons  arrested)  are 
held  during  their  stay  in  the  port  "at  the  disposal  of  the  consul." 
Surely  the  ship  is  not  held  at  the  disposal  of  the  consul.  It  is  the 
persons  arrested  who  are  held,  and  they  are  to  be  released  at  the 
mere  request  of  the  consul,  made  in  writing,  and  the  expenses  of 
the  arrest  and  detention  of  the  persons  arrested  are  to  be  paid  by  the 

126 


CONSULAR  CASES 

consul.  From  the  language  of  the  treaty  the  departure  of  the  ship 
from  the  port  need  have  no  effect  (177)  whatever  upon  the  imprison- 
ment of  the  persons  arrested.  The  statute  (sec.  4081  of  the  Rev.  Stat.) 
provides  that  the  imprisonment  shall  in  no  case  last  longer  than  two 
months,  and  at  the  end  of  that  time  the  person  arrested  is  to  be  set 
at  liberty,  and  shall  not  again  be  arrested  for  the  same  cause.  The 
statute  makes  no  reference  to  the  stay  of  the  vessel  in  port,  and  the  leg- 
islative construction  of  the  treaty  is  that  the  imprisonment  is  not  lim- 
ited by  the  departure  of  the  ship.  Therefore  the  statute  provides  that 
such  imprisonment  shall  not  last,  in  any  event,  longer  than  two  months. 
That  term  might  end  while  the  vessel  was  still  in  port.  This  construc- 
tion not  only  carries  out  the  plain  language  of  the  treaty,  but,  it  seems 
to  us,  it  is  its  reasonable  interpretation.  A  vessel  may  arrive  in  port 
with  a  mutinous  sailor,  whose  arrest  is  asked  for  under  the  treaty. 
When  imprisoned  pursuant  to  the  terms  of  the  treaty  he  ought  not 
to  be  discharged  without  the  request  of  the  consul  while  within  the 
limit  of  the  term  of  imprisonment  provided  by  the  statute,  simply  be- 
cause the  vessel  from  which  he  was  taken  has  left  the  port.  If  that 
wxre  so  the  result  would  be  either  that  the  sailor  would  be  discharged 
as  soon  as  the  ship  left  the  port,  or,  in  order  to  prevent  such  dis- 
charge, he  would  be  taken  on  board  the  ship  again,  and  probably  be 
placed  in  irons.  The  ship  might  then  continue  a  voyage  which  would 
not  bring  it  back  to  France  for  months.  During  this  time  the  sailor 
might  be  kept  in  irons  and  in  close  confinement  on  board  ship,  or  else 
the  discipline  and  safety  of  the  ship  might  be  placed  in  peril.  By  the 
other  construction,  although  the  ship  had  left  the  port  without  the 
mutinous  sailor,  he  would  not  be  entitled  to  his  discharge  from  im- 
prisonment within  the  two  months  provided  for  by  the  statute,  and 
this  would  give  an  opportunity  to  the  consul  to  send  the  sailor  back  to 
France  at  the  earliest  opportunity  and  at  the  expense  of  the  French 
government,  by  a  vessel  which  was  going  directly  to  that  country. 

The  district  court  erred  in  discharging  the  defendant  before  the 
expiration  of  the  two  months  provided  for  in  the  act  of  (178)  con- 
gress, and  against  the  protest  of  the  French  consul.  Less  than  one  of 
the  two  months  of  imprisonment  permitted  by  the  statute  had  ex- 
pired when  the  defendant  was  discharged.  The  order  discharging  him 
must  be  reversed  and  the  defendant  remanded  to  imprisonment  in  a 
prison  where  prisoners  under  sentence  of  a  court  of  the  United  States 
may  be  lawfully  committed.  Rev.  Stat.  Sec.  4081,  subject  to  the  juris- 
diction of  the  French  consular  authority  of  the  port  of  San  Francisco, 
but  such  imprisonment  must  not  exceed,  when  taken  with  the  former 
imprisonment  of  the  defendant,  the  term  of  two  months  in  the  ag- 
gregate. 

127 


CONSULAR  CASES 

Reversed,  and  remanded  for  further  proceedings  consistent  with 
this  opinion. 

:\Ir.  JUSTICE  HARLAN  dissented. 

DALY.  IN  RE,  (1841,  Great  Britain) 

9  D.  P.  C.  3S0. 

Tindal,  Court  of  Common  Pleas. 

Talfourd,  Serj.,  moved  that  the  certificate  of  the  acknowledg- 
ment of  the  deed  in  this  case  might  be  filed,  under  the  provisions  of 
the  Finos  and  Recoveries  Act,  (3  &  4  Wm.  4  C.  75).  A  special  com- 
mission had  issued  to  St.  Petersburg,  and  the  papers  had  been  re- 
turned, the  affidavit,  verifying  the  certificate,  being  sworn  before  the 
British  consul  there.  The  6  Geo.  4,  C.  87,  S.  20,  empowered  British 
consuls  abroad  to  take  afiidavits,  and  to  do  such  notarial  acts  as  any 
notary  public  might  do.  The  question  was,  whether  the  affidavit  ought 
to  have  been  made  before  the  local  officers  of  the  country,  or  whether 
it  was  not  sufficient  that  it  had  been  sworn  before  the  consul?  (Bosan- 
quet,  J.  Do  your  affidavits  show  that  there  is  any  difficulty  in  pro- 
curing the  affidavit  to  be  sworn  before  the  local  authorities?)  They 
do  not,  but  the  court  would  in  a  case  of  this  description,  exercise  a 
discretion  with  regard  to  the  reception  of  the  affidavit.  In  France,  the 
officers  of  that  country  were  forbidden  to  take  affidavits,  and  the 
court  had,  in  cases  coming  from  that  country,  received  affidavits 
sworn  before  the  British  consul. 

Tindal,  C.  J. — Perhaps  you  can  remove  the  difBculty  by  pro- 
curing an  affidavit,  shewing  that  there  is  an  objection  on  the  part  of 
the  magistrates  of  the  country  to  swear  affidavits.  You  had  better 
renew  your  application. 

Talfourd,  Scrj.,  on  a  subsequent  day,  intimated  to  the  court  that 
he  had  ascertained  that  a  similar  application  had  been  made  about 
two  years  ago,  when  it  was  stated  that  the  magistrates  of  Russia  were 
not  empowered  to  take  affidavits.  This,  it  was  submitted,  removed  the 
difBculty  which  existed. 

Tindall,  C.  J. — Lot  it  pass. 

DARLING,  IN  RE,  (1845,  Great  Britain) 

2  M.  &  G.  &  S.  347. 

Tindall,  Court  of  Common  Picas. 

(Syllabus)  The  court  allowed  an  acknowledgment  to  be  received  and  filed 
under  the  3  &  4  W.  4.  C.  74.  S.  85.,  where  the  affidavit  verifying  the  same  was 
sworn  before  "The  provisional  British  consul  for  the  Society  Islands,"  it  ap- 
pearing that  there  was  no  notary  or  any  other  official  person  before  whom  it 
could  have  been  sworn,  within  many  hundred  miles. 

128 


CONSULAR  CASES 


DAVENPOET,  IN  KE,  (1904,  U.  S.— Italy) 

89  N.  Y.  Supp.  537;  43  Misc.  573. 

Church,  Surrogate's  Court,  Kings  County. 

[Decisions  are  contradictory  and  it  is  to  be  regretted  that  no  ap- 
pellate decision  has  been  given. 

The  Italian  consul  has  the  right  to  "intervene  which  would  in- 
clude the  right  to  receive  the  property  belonging  to  the  alien  and 
hence  the  money  in  question  here  should  be  paid  over  to  the  consul- 
general." — Ed.] 

DAVIS  V.  LESLIE,  (1848,  U.  S.) 

1  Abb.  Adm.  123;  Fed.  Cases  3,639. 
Betts,  District  Court. 

(131)  (Extract)  I  do  not  think  the  first  objection,  that  the 
court  is  without  jurisdiction  of  a  suit  for  wages  between  foreigners, 
so  far  as  it  rests  upon  the  idea  that  foreigners  are  without  a  standing 
in  court,  can  be  maintained.  There  has  been,  on  the  part  of  maritime 
courts,  both  of  England  and  America,  a  very  general  disinclination 
to  entertain  such  suits,  and  they  have  in  several  eases  declined  to 
take  jurisdiction,  in  language  which  almost  amounts  to  a  denial  of 
the  power  to  take  it.  But  I  understand  the  weight  of  authority  in 
both  countries  to  be,  that  upon  the  one  hand  the  courts  are  not  with- 
out ample  power  to  hear  and  determine  such  suits,  when  the  circum- 
stances of  the  case  before  them  seem  to  render  it  fit  that  they  should 
do  so ;  while,  upon  the  other  hand,  they  are  not  bound  to  do  this,  but 
will,  in  general,  from  motives  of  international  comity,  of  delicacy,  and 
of  convenience,  decline  the  suit.  In  other  words,  the  foreign  libellant 
is  regarded  as  not  entitled  to  invoke  the  powers  of  the  court,  as  mat- 
ter of  absolute  right;  yet  where  the  court  is  satisfied  that  justice  re- 
quires its  interposition  in  his  favor,  those  powers  may  be,  and  will 
be  exercised  in  his  behalf. 

That  there  is  vested  in  the  court  at  least  a  latent  jurisdiction  over 
these  actions,  which  may  be  exercised  under  the  (132)  guidance  of  a 
sound  discretion,  seems  to  be  clearly  shown  by  reference  to  those  cases 
in  which,  both  in  England  and  America,  suits  between  foreigners  have 
been  entertained  in  admiralty,  on  the  ground  of  a  special  necessity. 
The  Courtney,  Edw.  Adm.  R.  239 ;  The  Wilhelm  Frederick,  1  Hagg. 
Adm.  R.  138;  Ellison  v.  The  Bellona,  Bee's  Adm.  R.  112;  Willendson 
V.  The  Forsoket,  1  Pet.  Adm.  R.  196;  Moran  v.  Bauden,  2  lb.  415; 
Weiberg  v.  The  Oloff,  lb.  428. 

The  very  question  has,  moreover,  been  brought  under  thorough 

129 


CONSULAR  CASES 

discussion  in  England,  as  recently  as  1840,  in  the  case  of  The  Golub- 
chick,  1  W.  Rob.  143.  This  case  was  a  libel  in  rem  for  wages.  The 
master  appeared  under  protest  to  the  jurisdiction,  grounded  on  the 
fact  that  the  suit  was  between  foreigners.  In  delivering  his  opinion 
against  the  protest,  Dr.  Lushington  reviews  the  previous  English  cases 
on  the  subject,  and  thus  expresses  the  views  taken  by  himself: 

"Upon  general  principles,  I  am  inclined  to  hold  that  this  court  does  possess 
a  competent  jurisdiction  to  adjudge  in  these  cases; — at  the  same  time  the  exer- 
cise of  this  jurisdiction  is  discretionary  with  the  court;  and  if  the  consent  of  the 
representative  of  the  government  to  which  the  vessel  belongs  is  withheld,  upon 
reasonable  grounds  being  shown,  the  court  must  decline  to  exercise  its  authority. 
Indeed,  circumstances  might  occur  upon  the  face  of  the  case  itself  in  which  this 
difficulty  might  arise,  that  the  matter  in  dispute  was  so  connected  with  the  mu- 
nicipal law  of  a  foreign  country,  that  this  court  would  be  incompetent  to  render 
impartial  justice;  in  such  cases,  undoubtedly,  the  court  would  decline  to  adjudi- 
cate." 

The  cases  in  this  country,  upon  the  whole,  sustain  the  same  doc- 
trine. 

DAVIS  V.  THE  BURCHAED,  see  The  Burchard. 

DAVIS  V.  PACKARD,  (1832,  U.  S.) 

6  Pet.  41. 

Tliompson,  Supreme  Court. 

(47)  THOMPSON,  J.,  delivered  the  opinion  of  the  court. 

This  case  comes  up  on  a  writ  of  error  to  the  court  for  the  cor- 
rection of  errors  in  the  state  of  New  York,  being  the  highest  court  of 
law  in  that  state,  in  which  a  decision  in  this  suit  could  be  had.  And  a 
motion  has  been  here  made  to  dismiss  the  writ  of  error  for  want  of 
jurisdiction  in  this  court. 

From  the  record  returned  to  this  court,  it  appears  that  the  cause 
went  up  to  the  court  for  the  correction  of  errors  in  New  York  upon  a 
writ  of  error  to  the  supreme  court  of  that  state ;  and  that  in  the  court 
of  errors,  the  plaintiff  assigned  as  error  in  fact,  that  he,  Charles  A. 
Davis,  before  and  at  the  time  of  the  commencement  of  the  suit  against 
him,  was  and  ever  since  hath  continued  to  be,  and  yet  is  consul-general 
in  the  United  States  of  his  majesty,  the  king  of  Saxony,  duly  admitted 
and  proved  as  such  by  the  president  of  the  United  States.  And  being 
such  consul,  he  ought  not,  according  to  the  constitution  and  laws  of 
the  Ignited  Statr^s,  to  have  been  impleaded  in  the  said  supreme  court, 
but  in  the  district  court  of  the  United  States  for  the  southern  district 
of  New  York,  or  in  some  other  district  court  of  the  said  United  States, 
and  that  the  said  supreme  court  had  not  jurisdiction,  and  ought  not 
to  have  taken  to  itself  the  cognizance  of  the  said  cause.    To  this  as- 

130 


CONSULAR  CASES 

signment  of  errors,  the  defendants  in  error  answered,  that  there  was 
no  error  in  the  record  and  proceedings  aforesaid,  nor  in  giving  the 
judgment  aforesaid,  because  they  say,  that  it  (48)  nowhere  appears 
by  the  said  record,  proceedings,  or  judgment,  that  the  said  Charles 
A.  Davis  ever  was  consul  of  the  king  of  Saxony,  and  they  pray  that  the 
said  court  for  the  correction  of  errors  may  proceed  to  examine  the 
record  and  proceedings  aforesaid,  and  the  matter  aforesaid,  above 
assigned  for  error,  and  that  the  judgment  aforesaid  may  be  in  all 
things  affirmed. 

The  record  then  states,  whereupon  the  court  for  the  correction  of 
errors,  after  having  heard  the  counsel  for  both  parties,  and  diligently 
examined,  and  fully  understood,  the  causes  assigned  for  error,  and 
inspected  the  record  and  process  aforesaid,  did  order  and  adjudge  that 
the  judgment  of  the  supreme  court  be  in  all  things  affirmed. 

The  motion  made  in  this  court  to  dismiss  the  writ  of  error  is 
founded  and  resisted  upon  affidavits,  on  each  side,  disclosing  what 
took  place  in  the  court  of  errors  in  New  York,  on  a  motion  there  made 
to  dismiss  the  writ  of  error  to  the  supreme  court  of  that  state,  and 
the  opinion  of  the  chancellor  delivered  in  the  court  of  errors,  as- 
signing his  reasons  for  affirming  the  judgment  of  the  supreme  court, 
has  also  been  laid  before  us. 

We  cannot  enter  into  an  examination  of  that  question  at  all :  what- 
ever took  place  in  the  state  court,  which  forms  no  part  of  the  record 
sent  up  to  this  court,  must  be  entirely  laid  out  of  view.  This  is  the 
established  course  of  this  court,  and  neither  the  opinion  of  the  chan- 
cellor, or  the  proceedings  on  the  motion,  forms  a  part  of  the  record. 
12  "Wheat.  118.  The  question  before  the  court  is,  whether  the  judg- 
ment was  correct,  not  the  ground  on  which  that  judgment  was  given. 
6  Wheat.  603. 

It  has  also  been  settled,  that  in  order  to  give  jurisdiction  to  this 
court  under  the  25th  section  of  the  judiciary  act,  (2d  vol.  Laws  U. 
S.  65,)  it  is  not  necessary  that  the  record  should  state  in  terms  that  an 
act  of  congress  was  in  point  of  fact  drawn  in  question.  It  is  suf- 
ficient, if  it  appears  from  the  record  that  an  act  of  congress  was  ap- 
plicable to  the  case,  and  was  misconstrued,  and  the  decision  in  the 
state  court  was  against  the  privilege  or  exemption  specially  set  up 
under  such  statute.  4  Wheat.  311;  2  Pet.  250;  3  Id.  301;  4  Id.  429. 
How  stands  the  record,  then,  in  this  case?  Charles  A.  Davis  alleges 
that  he  is  consul-general  of  the  king  of  Saxony  in  the  United  States, 
and  that  he  is  thereby  privileged  from  being  sued  in  the  (49)  state 
court,  according  to  the  constitution  and  laws  of  the  United  States. 
The  fact  of  his  being  such  consul  is  not  denied  by  the  joinder  in 
error.     The  answer  given  is,  that  it  nowhere  appears  by  the  record, 

131 


CONSULAR  CASES 

proceedings,  or  judgment  of  the  supreme  court,  that  the  said  Davis 
was  such  consul;  and  the  court  of  errors,  in  giving  judgment  say, 
after  having  examined  and  fully  understood  the  causes  assigned  for 
error,  they  affirm  the  judgment  of  the  supreme  court.  This  was  de- 
ciding against  the  privilege  set  up  imder  the  act  of  congress,  which 
declares  that  the  district  court  of  the  United  States  shall  have  juris- 
diction, exclusively  of  the  courts  of  the  several  states,  of  all  suits 
against  consuls  and  vice-consuls.     (2d  vol.  Laws  U.  S.  60,  sect.  9.)^ 

The  question  before  this  court  is  not  whether  the  judgment  of  the 
supreme  court  in  New  York  was  correct.  It  is  the  judgment  of  the 
court  for  the  correction  of  errors,  that  is  to  be  reviewed  here.  That 
is,  the  final  judgment  in  the  highest  court  in  the  state,  and  none 
other,  can  be  brought  into  this  court,  under  the  25th  section  of  the 
judiciary  act. 

Whether  it  was  competent  for  Davis  in  the  court  of  errors  to  as- 
sign, as  error  in  fact,  his  exemption  from  being  sued  in  a  state 
court,  is  not  a  question  presented  by  the  record.  No  such  question  ap- 
pears to  have  been  raised  or  decided  by  the  court.  And  judging  from 
the  ordinary  course  of  judicial  proceedings  in  such  cases,  we  are 
warranted  in  inferring  that  no  such  question  could  have  been  made. 
For  if  the  court  of  errors  had  entertained  the  opinion  that  such  ex- 
emption could  not  be  assigned  for  error  in  that  court,  the  writ  of  error 
would  probably  have  been  dismissed.  Or  if  the  court  had  understood 
that  the  fact  of  his  being  consul  was  denied,  an  issue  would  prob- 
ably been  directed  to  try  that  fact,  under  a  provision  in  a  statute  of 
that  state,  which  declares:  "That  whenever  an  issue  of  fact  shall  be 
joined  upon  any  writ  of  error,  returned  into  the  court  for  the  cor- 
rection of  errors,  and  whenever  any  question  of  fact  shall  arise  upon 
any  motion  in  relation  to  such  writ,  or  the  proceedings  thereon,  the 
court  may  remit  the  record  to  the  supreme  court,  with  directions  to 
cause  an  issue  to  be  made  up  by  the  parties,  to  try  such  question  of 
fact  at  the  proper  circuit  court  or  sittings,  and  to  certify  (50)  the 
verdict  thereupon  to  the  said  court  for  the  correction  of  errors." 
(2d  vol.  Rev.  Stat.  New  York,  601.) 

From  the  record,  then,  we  are  necessarily  left  to  conclude  that  the 
state  court,  assuming  or  admitting  the  fact  that  Davis  was  consul- 
general,  as  alleged  in  his  assignment  of  errors,  yet  [decided  that]  it 
did  not  exempt  him  from  being  sued  in  a  state  court,  which  brings 
the  case  within  the  25th  section  of  the  judiciary  act;  the  decision 
having  been  against  the  exemption  set  up  and  claimed  under  a  statute 
of  the  United  States. 

^  Stats,  at  Large,  76. 

132 


CONSULAR  CASES 

The  motion  to  dismiss  the  writ  of  error  is  accordingly  denied. 
7  P.  276;  10  P.  368;  14  P.  614;  5  O.  140. 

DAVIS  V.  PACKARD,  (1833,  U.  S.) 

7  Pet.  276. 

Thompson,  Supreme  Court. 

THOMPSON,  J.,  delivered  the  opinion  of  the  court. 

(281)  The  writ  of  error  in  this  case  brings  up  for  review,  a 
judgment  recovered  against  the  plaintiff  in  error  in  the  court  for 
the  correction  of  errors,  in  the  state  of  New  York.  The  case  was 
before  this  court  at  the  last  term,  (6  Pet.  41,)  on  a  motion  to  dismiss 
the  writ  of  error  for  want  of  jurisdiction.  This  court  sustained  its 
jurisdiction  under  the  25th  section  of  the  judiciary  act,  on  the  ground 
that  the  decision  in  the  state  court  was  against  the  exemption  set  up 
by  the  plaintiif  in  error ;  namely :  that  he,  being  consul-general  of  the 
king  of  Saxony  in  the  United  States,  the  state  court  had  not  juris- 
diction of  the  suit  against  him.  The  principal  difficulty  in  this  case 
seems  to  grow  out  of  the  manner  in  which  the  exemption  set  up  by  the 
plaintiff  in  error,  was  brought  under  the  consideration  of  the  state 
court,  and  in  a  right  understanding  of  the  ground  on  which  the 
court  decided  against  it. 

As  an  abstract  question,  it  is  difficult  to  understand  on  what 
ground  a  state  court  can  claim  jurisdiction  of  civil  suits  against  for- 
eign consuls.  By  the  constitution,  the  judicial  power  of  the  United 
States  extends  to  all  cases  affecting  ambassadors,  other  public  min- 
isters, and  consuls,  &c.  And  the  judiciary  act  of  1789,  (2  Laws  U. 
S.  sect.  9,^  gives  to  the  district  courts  of  the  United  States,  ex- 
clusively of  the  courts  of  the  several  states,  jurisdiction  of  all  suits 
against  consuls  and  vice-consuls,  except  for  certain  offences  mentioned 
in  the  act.  The  record  sent  up  with  the  writ  of  error  in  this  case, 
shows  that  the  suit  was  commenced  in  the  supreme  court  of  the  state 
of  New  York;  and  that  the  plaintiff  in  error  did  not  plead  or  set  up 
his  exemption  in  that  court;  but  on  the  cause  being  carried  up  to 
the  court  for  correction  of  errors,  this  matter  was  assigned  for  error 
in  fact;  notwithstanding  which  the  court  gave  judgment  against  the 
plaintiff  in  error. 

It  has  been  argued  here,  that  the  exemption  might  have  been 
excluded  by  the  court  for  the  correction  of  errors,  on  the  groimd  that 
it  was  waived  by  not  having  been  pleaded  in  the  supreme  court.  It 
is  unnecessary  to  decide  definitely  whether,  if  such  had  been  the 
ground  on  which  the  judgment  of  the  state  court  rested,  it  would  take 

^  Stats,  at  Large,  76. 

133 


CONSULAR  CASES 

the  case  out  of  the  revising  power  of  this  court  under  the  25th  sec- 
tion of  the  judiciary  act ;  for  we  cannot  say,  judging  from  the  record, 
that  the  judgment  (282)  turned  on  this  point;  but,  on  the  contrary, 
we  think  the  record  does  not  warrant  any  such  conclusion. 

It  has  been  repeatedly  ruled  in  this  court,  that  we  can  look  only 
to  the  record  to  ascertain  what  was  decided  in  the  court  below.  The 
question  before  this  court  is,  whether  the  judgment  was  correct,  not 
the  groimd  on  which  that  judgment  was  given.  And  it  is  the 
judgment  of  the  court  of  errors,  and  not  of  the  supreme  court,  with 
which  we  have  to  deal. 

Looking,  then,  to  the  record,  we  find  that  when  the  cause  went  up 
upon  a  writ  of  error  from  the  supreme  court,  to  the  court  for  tha 
correction  of  errors,  it  was  assigned  as  error  in  fact,  that  Charles  A, 
Davis,  before  and  at  the  time  of  commencing  the  suit  against  him,  was, 
and  ever  since  has  continued  to  be,  and  yet  is,  consul-general  of  his 
majesty  the  king  of  Saxony,  in  the  United  States,  duly  admitted  and 
approved  as  such  by  the  president  of  the  United  States. 

The  record  shows  no  objection  to  the  time  and  place,  when  and 
where  this  matter  was  set  up,  to  show  that  the  supreme  court  of  New 
York  have  not  jurisdiction  of  the  case.  The  only  answer  to  this  as- 
signment of  errors  is,  that  there  is  no  error  in  the  record  and  pro- 
ceedings aforesaid,  nor  in  the  giving  the  judgment  aforesaid,  because 
it  nowhere  appears  by  the  record,  proceedings  or  judgment,  that  the 
said  Charles  A.  Davis  ever  was  consul  of  the  king  of  Saxony. 

This  was  no  answer  to  the  assignment  of  errors.  It  was  not  meet- 
ing or  answering  the  matter  assigned  for  error.  It  is  not  alleged  in 
the  assignment  of  errors  that  it  does  appear,  by  the  proceedings  or 
judgment  in  the  supreme  court  of  New  York,  that  Charles  A.  Davis 
was  consul  of  the  king  of  Saxony. 

Matter  assigned  in  the  appellate  court,  as  error  in  fact,  never  ap- 
pears upon  the  record  of  the  inferior  court;  if  it  did,  it  would  be 
error  in  law. 

Suppose  infancy  should  be  assigned  as  error  in  fact ;  would  it  be 
any  answer  to  say  that  it  nowhere  appeared  by  the  record,  that  the 
defendant  in  the  court  below  was  an  infant. 

The  whole  doctrine  of  allowing  in  the  appellate  court  the  assign- 
ment of  error  in  fact,  grows  out  of  the  circumstance  that  such  matter 
does  not  appear  on  the  record  of  the  inferior  court. 

But  the  answer  to  the  assignment  of  errors  prays  that  the  (283) 
court  for  the  correction  of  errors  may  proceed  to  examine  the  record 
and  proceedings  aforesaid,  and  the  matters  aforesaid  above  assigned 
for  error. 

Under  this  informal  state  of  the  pleadings  in  the  court  for  the 

134 


CONSULAR  CASES 

correction  of  errors,  how  is  this  court  to  view  the  record?  The  most 
reasonable  conclusion  is  that  the  court  disregarded  matters  of  form, 
and  considered  the  answer  of  the  defendants  in  error  as  a  regular 
joinder  in  error.  And  this  conclusion  is  strengthened  when  we  look 
at  the  form  of  the  entry  of  judgment,  ' '  Whereupon  the  said  court  for 
the  correction  of  errors,  after  having  heard  the  counsel  for  both 
parties,  and  diligently  examined  and  fully  understood  the  causes  as- 
signed for  error,"  &c.  affirms  the  judgment. 

The  only  cause  assigned  for  error  was  that  Charles  A.  Davis  was, 
consul-general  of  the  king  of  Saxony ;  and  the  conclusion  must  neces- 
sarily follow  that  this  was  not,  in  the  opinion  of  the  court,  a  suf- 
ficient cause  for  reversing  the  judgment.  If  it  had  been  intended  to 
say  it  was  not  error,  because  not  pleaded  in  the  court  below,  it  would 
probably  have  been  so  said.  Although  this  might  not  perhaps  have 
been  strictly  technical,  yet  as  the  court  gave  judgment  on  the  merits, 
and  did  not  dismiss  the  writ  of  error,  it  is  reasonable  to  conclude,  that 
the  special  grounds  for  deciding  against  the  exemption  set  up  by  the 
plaintiff  in  error,  would  have  been  in  some  way  set  out  in  the  af- 
firmance of  the  judgment. 

If  any  doubt  or  difficulty  existed  with  respect  to  the  matters  of 
fact  set  up  in  the  assignment  of  errors,  the  court  for  the  correction 
of  errors  was,  by  the  laws  of  New  York,  clothed  with  ample  powers 
to  ascertain  the  facts. 

The  statute  (2  Laws  N.  Y.  601)  declares,  "that  whenever  an 
issue  of  fact  shall  be  joined  upon  any  writ  of  error  returned  into  the 
court  for  the  correction  of  errors,  and  whenever  any  question  of  fact 
shall  arise  upon  any  motion  in  relation  to  such  writ  or  the  proceedings 
thereon ;  the  court  may  remit  the  record  to  the  supreme  court,  with  di- 
rections to  cause  an  issue  to  be  made  up  by  the  parties  to  try  such 
question  of  fact,  at  the  proper  circuit  court  or  sittings ;  and  to  certify 
the  verdict  thereupon  to  the  court  for  the  correction  of  errors. ' ' 

(284)  No  such  issue  having  been  directed,  we  must  necessarily 
conclude  that  no  question  of  fact  was  in  dispute;  and  as  the  record 
contains  no  intimation  that  this  matter  was  not  set  up  in  proper  time, 
the  conclusion  would  seem  irresistible,  that  the  court  for  the  correc- 
tion of  errors  considered  the  matter  itself,  set  up  in  the  assignment,  as 
insufficient  to  reverse  the  judgment.  This  being  the  only  question 
decided  in  that  court,  is  the  only  question  to  be  reviewed  here:  and 
viewing  the  record  in  this  light,  we  cannot  but  consider  the  judgment 
of  the  state  court  in  direct  opposition  to  the  act  of  congress,  which 
excludes  the  jurisdiction  of  the  state  courts  in  suits  against  consuls. 

But  if  the  question  was  open  for  consideration  here,  whether  the 
privilege  claimed  was  not  waived  by  omitting  to  plead  it  in  the  su- 

135 


CONSULAR  CASES 

preme  court,  we  should  incline  to  say  it  was  not.  If  this  was  to  be 
viewed  merely  as  a  personal  privilege,  there  might  be  grounds  for  such 
a  conclusion,  but  it  cannot  be  so  considered.  It  is  the  privilege  of  the 
countrj'  or  government  which  the  consul  represents.  This  is  the  light 
in  which  foreign  ministers  are  considered  by  the  law  of  nations,  and 
our  constitution  and  law  seem  to  put  consuls  on  the  same  footing  in 
this  respect. 

If  the  privilege  or  exemption  was  merely  personal,  it  can  hardly 
be  supposed  that  it  would  have  been  thought  a  matter  sufficiently  im- 
portant to  require  a  special  provision  in  the  constitution  and  laws  of 
the  United  States,  Higher  considerations  of  public  policy  doubtless 
led  to  the  provision.  It  was  deemed  fit  and  proper  that  the  courts  of 
the  government,  with  which  rested  the  regulation  of  all  foreign  inter- 
course, should  have  cognizance  of  suits  against  the  representatives  of 
such  foreign  governments.  That  it  is  not  considered  a  personal  priv- 
ilege in  England,  is  evident  from  what  fell  from  Lord  Ellenborough 
in  the  case  of  Marshall  v.  Critico,  9  East,  447,  It  was  a  motion  to 
discharge  the  defendant  from  arrest  on  common  bail  on  the  ground  of 
his  privilege  under  the  statute  7  Ann,  c.  12,  as  being  consul-general 
from  the  Porte.  Lord  Ellenborough  said,  this  is  not  a  privilege  of  the 
person,  but  of  the  state  he  represents,  and  the  defendant  having 
been  divested  of  the  character  in  (285)  which  he  claims  that  privilege, 
there  is  no  reason  why  he  should  not  be  subject  to  process  as  other 
persons ;  and  the  motion  was  denied  on  this  ground. 

Nor  is  the  omission  to  plead  the  privilege  deemed  a  waiver  in 
England,  as  is  clearly  to  be  inferred  from  cases  where  application  has 
been  made  to  discharge  the  party  from  execution,  on  the  ground  of 
privilege  imder  the  statute  of  Ann,  which  is  considered  merely  as 
declatory  of  the  law  of  nations ;  and  no  objection  appears  to  have  been 
made,  that  the  privilege  was  not  pleaded,    3  Burr.  1478,  1676. 

It  may  not  be  amiss  barely  to  notice  another  argument  which 
has  been  pressed  upon  the  court  by  the  counsel  for  the  defendants  in 
error,  although  we  think  it  does  not  properly  arise  upon  this  record. 

It  is  said  the  act  of  congress  does  not  apply  to  this  case,  because, 
being  an  action  upon  a  recognizance  of  bail,  it  is  not  on  original  pro- 
ceeding, but  the  continuation  of  a  suit  rightfully  commenced  in  a 
state  court. 

The  act  of  congress  is  general,  extending  to  all  suits  against  con- 
suls; and  it  is  a  little  difficult  to  maintain  the  proposition,  that  an  ac- 
tion of  debt  upon  reco^'-nizanco  of  bail  is  not  a  suit. 

But  we  apprehend  the  proposition  is  not  well  founded ;  that  it  is 
not,  in  legal  understanding,  an  original  proceeding. 

It  is  laid  down  in  the  books,  that  a  scire  facias  upon  a  recognizance 

136 


CONSULAR  CASES 

of  bail  is  an  original  proceeding,  and  if  so,  an  action  of  debt  upon 
the  recognizance  is  clearly  so.  A  scire  facias  upon  a  judgment  is,  to 
some  purposes,  only  a  continuation  of  the  former  suit;  but  an  action 
of  debt  on  a  judgment  is  an  original  suit. 

It  is  argued,  that  debt  on  recognizance  of  bail,  is  a  continuation 
of  the  original  suit,  because,  as  a  general  rule,  the  action  must  be 
brought  in  the  same  court.  Although  this  is  the  general  rule,  be- 
cause that  court  is  supposed  to  be  more  competent  to  relieve  the  bail 
when  entitled  to  relief,  yet,  whenever  from  any  cause  the  action  can- 
not be  brought  in  the  same  court,  the  plaintiff  is  never  deprived  of  his 
remedy,  but  allowed  to  bring  his  action  in  a  different  court,  as  where 
the  bail  moves  out  of  the  jurisdiction  of  the  court.  This  is  the  set- 
tled rule  in  the  state  of  New  York ;  and  it  is  surely  a  good  reason  for 
bringing  (286)  the  suit  in  another  court,  when  the  law  expressly  for- 
bids it  to  be  brought  in  the  same  court  where  the  original  action  was 
brought.  2  Wil.  Saimd.  71,  a;  Tidd's  Practice,  1099,  6th  ed. ;  2  Archb. 
Prac.  86,  book  3,  c.  3;  7  Johns.  318;  9  Johns.  80;  12  Johns.  459;  13 
Johns.  424;  1  Chit.  713;  18  Common  Law,  212,  n.  a. 

But  the  reversal  of  the  judgment  in  this  case  it  put  on  the  ground 
that  from  the  record  we  are  left  to  conclude,  that  the  court  for  the 
correction  of  errors  decided  that  the  character  of  consul-general  of  the 
king  of  Saxony,  did  not  exempt  the  plaintiff  in  error  from  being  sued 
in  the  state  court. 

Judgment  reversed. 

DAVY,  AND  OTHERS,  TO  MALTWOOD,  (1841,  Great  Britain) 
2  Manning  and  Granger's  Reports  (Common  Pleas),  424. 
Tindal  C.  J.,  Common  Pleas. 

In  October  1840,  a  special  commission  was  obtained  to  take  the 
acknowledgment  of  Sarah  Ann,  the  wife  of  Samuel  Davy,  then  and 
still  residing  at  St.  Petersburg,  in  Russia,  of  a  deed  executed  by  her  on 
the  conveyance  of  a  copyhold,  parcel  of  the  manor  of  Lambeth,  to 
which  she  was  entitled  with  her  two  sisters,  in  coparcenary.  The 
acknowledgment  being  taken  and  the  common  certificate  of  acknowl- 
edgment, and  an  affidavit  of  the  due  taking,  being  returned,  those 
documents  were  brought  for  enrolment,  pursuant  to  the  3  and  4  W. 
4  c.  74.  s.  85;  but  the  officer  appointed  by  the  court,  refused  to  file 
them  without  the  order  of  the  court,  on  the  ground  that  the  afiidavit 
of  the  due  taking  of  the  acknowledgment  appeared  to  be  sworn  before 
the  British  consul  at  St.  Petersburg,  and  that  a  consul  did  not  come 
within  the  description  of  "a  person  duly  authorized  to  take  affidavits 
in  the  court  of  common  pleas, "  or  "  a  magistrate. ' ' 

137 


CONSULAR  CASES 

On  a  former  day  in  this  term,  Talfourd  Serjt.  moved  that  the 
certificate  might  be  enrolled.  The  rules  made  in  Hilary  term  1834 
are  silent  as  to  the  description  of  persons  before  whom  the  affidavit 
is  to  be  sworn.  The  practice  with  respect  to  acknowledgments  taken 
abroad  is  imderstood  to  have  arisen  out  of  the  adoption,  by  the  of- 
ficers, of  the  regulations  prescribed  by  the  rule  of  this  court  of  Hilary 
term,  14  G.  3.  as  to  common  recoveries;  which  regulations  had 
been  previously  adopted  as  to  fines,  Cruttenden  v.  Bourbel,  A 
consul  is  not  a  magistrate;  but  he  is  a  person  authorized  to  admin- 
ister oaths  imder  the  6  G.  4.  c.  87,  s.  20.,  and  is  much  more  competent 
to  administer  the  oath  correctly  than  a  Russian  magistrate  ignorant, 
probably,  of  the  language  and  of  the  usages  of  this  country.  It  is  sug- 
gested, though  the  fact  is  not  embodied  in  an  affidavit,  that  in  Russia 
a  great  difficulty  exists  in  obtaining  the  administration  of  oaths.  In 
France,  the  magistrates  refuse  to  adminivster  oaths  in  such  cases;  and 
the  court  now  receives  affidavits  sworn  in  that  country  before  the 
British  consul  or  vice-consul,  although  formerly  the  practice,  as  to 
fines,  was  otherwise:  Hutchinson,  ex  'parte.  The  learned  serjeant 
referred  also  to  cases  of  acknowledgments  taken  at  Hamburg.  Edye 
and  Others  to  Lord  Rolle. 

TINT) ALL  C.  J.  An  affidavit  may  probably  be  made,  that  a  dif- 
ficulty exists  in  getting  an  affidavit  sworn  before  a  magistrate  in  Rus- 
sia ;  if  not,  the  affidavit  should  go  back  to  be  resworn. 

Talfourd  Serjt.,  on  this  day  renewed  his  application,  and  referred 
to  a  case  in  which  this  court  had,  two  years  before  upon  a  notarial 
certificate  as  to  the  state  of  the  law  of  Russia  in  this  respect,  allowed 
the  certificate  of  an  acknowledgment  taken  in  Russia  to  be  enrolled. 
In  that  case  a  commission  had  issued  to  take  the  acknowledgment  of 
Mrs.  Sophia  Gordon  Handyside,  then  residing  at  St.  Petersburg,  and 
the  notarial  certificate  concluded  as  follows: 

"And  I  further  certify  that  the  laws  of  Russia  do  not  grant  the 
authority  to  any  magistrate  to  administer  oaths  to  any  person  what- 
soever. And  that  in  virtue  of  an  act  of  parliament  passed  in  the 
reign  of  his  late  Britanic  majesty  George  IV,  the  British  consul 
is  authorized  to  administer  oaths. 

"Thomas  Bishop, 
(Not.  Pub.)" 
"16  Aug.  1838. 
"Old  Style." 

TINT) ALL  C.  J.    I  think  the  document  may  be  enrolled. 

The  rest  of  the  court  concurring — Order  made. 

138 


CONSULAR  CASES 

DE  GIVE  V.  GRAND  RAPIDS  FURNITURE  CO.,   (1894,  U.  S.— Bel- 
gium) 

94  Ga.  605;  21  S.  E.  582. 

Van  Epps,  Georgia  Supreme  Court. 

[Federal  courts  do  not,  since  the  repeal  of  8th  clause  of  §  711  of 
Rev.  Statutes,  have  exclusive  jurisdiction  over  consuls  and  civil  suits 
may  be  brought  against  them  in  the  state  courts. — Ed.] 

DE  LEMA  v.  HALDIMAND,  (1824,  Great  Britain) 
1  Ttj.  &  M.  45;  2  Phillm,  (2d  Ed.)  292;  1  Car.  &  P.  183. 
Abbott,  King's  Bench. 

[Spanish  consul-general  sued  for  fees  for  giving  certificates  that 
certain  bonds  had  been  delivered  up — consul  attended  at  the  counting- 
house  of  the  defendant,  and  claimed  that  this  "did  not  fall  within 
the  ordinary  duties  of  a  consul,  for  which  alone  he  received  a  salary 
from  his  government. — Ed.] 

ABBOTT  LD.  C.  J.  I  am  of  opinion  that  this  action  cannot  be 
sustained.  The  plaintiff  was,  in  the  present  instance,  acting  as  the  of- 
ficer of  his  own  government,  and  in  direct  conformity  to  instructions 
which  he  had  received.  In  cases  where  he  acts  between  one  individual 
and  another,  he  may  be  entitled  to  receive  fees.  But  here  he  is  acting 
directly  as  the  officer  of  his  own  government. 

DENT  v.  SMITH,  (1869,  Great  Britain) 
Law  Eep.  4  Queen's  Bench  414. 

Queen's  Bench. 

[Case  involving  the  consideration  of  the  action  of  the  Russian 
consul  at  Constantinople,  who  had  appointed  a  curator  of  the  wreck 
and  three  persons  to  assess  expenses. — Ed.] 

DILLON,  IN  RE,  (1854,  U.  S.— France) 
7  Sawy.  561;  Fed.  Cases  3914;  5  Moore  78. 
Hoffman,  District  Court. 

1.  Consuls  not  Amenable  to  Subpoena. — The  provision  of  the  constitution, 
which  secures  to  the  accused  in  criminal  prosecutions  the  right  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor,  does  not  authorize  the  is- 
suing of  such  process  to  ambassadors,  who  by  public  law,  or  consuls,  who  by  ex- 
press treaty,  are  not  amenable  to  the  process  of  the  courts. 

2.  Subpoena  Duces  Tecum — Official  Documents. — Where  a  subpoena  duces 
tecum,  directed  to  a  consul  of  France,  is  prayed  for,  it  is  the  duty  of  the  court 
to  require  the  party  praying  for  it  to  show  that  the  document  is  not  an  of- 
ficial paper,  protected  by  law  from  examination  and  seizure. 

139 


CONSULAR  CASES 

(562)  The  facts  appear  in  the  opinion  of  the  court. 

S.  "W.  Inge.  United  States  Attorney. 

C.  Temple  Enimett,  attorney  for  Del  Valle. 

HOFFMAN,  J.  In  this  case  the  counsel  of  Senor  Del  Valle,  a 
defendant  now  on  trial  on  an  indictment  found  against  him  in  this 
court,  obtained  a  subpoena  duces  tecum,  directed  to  P.  Dillon,  com- 
manding him  to  appear  in  court  and  produce  a  document  said  to  be  in 
his  possession,  and  deemed  material  for  the  defense  of  the  accused. 
The  subpa?na  was  returned  served,  but  no  return  was  made  to  the 
subpoena  by  M.  Dillon,  stating  his  consular  privileges  or  other  exemp- 
tion from  the  process  of  the  court.  The  witness  having  failed  to  ap- 
pear, an  attachment  to  compel  his  appearance  was  moved  for  and  ob- 
tained. On  being  brought  into  court,  M,  Dillon,  who  is  the  consul  of 
France  at  this  port,  protested  against  the  compulsory  process  which 
had  been  issued,  and  while  he  disavowed  any  disrespect  to  the  court, 
he  claimed  the  immunity  from  compulsory  process,  requiring  him  to 
appear  as  a  witness,  secured  to  the  consuls  of  France  and  America, 
by  the  second  article  of  the  convention  ratified  April  1,  1853.  He  was 
informed  by  the  court  that  it  was  ready  to  hear  the  question  whether 
the  provisions  of  the  convention  applied  to  the  present  case  fully 
discussed;  the  argument  was  fixed  for  the  succeeding  day,  and  M. 
Dillon  discharged.  The  discussion  that  has  since  taken  place,  would 
perhaps  more  regularly  have  arisen  on  the  return  of  the  process,  or 
on  that  of  a  rule  to  show  cause  why  an  attachment  should  not  issue. 
The  counsel  of  M.  Dillon  were  invited,  however,  by  the  court,  to  argue 
the  subject  as  fully  as  if  on  motion  for  an  attachment ;  and  the  whole 
question  has  been  ably  and  elaborately  discussed  by  him  as  well  as  by 
the  counsel  for  the  defendant  on  the  trial. 

The  question  presented  to  the  court  is,  whether  it  has  the  power, 
on  the  motion  of  the  defendant,  accused  of  a  crime  against  the  laws 
of  the  United  States,  to  issue  and  enforce  compulsory  process  to  the 
consul  of  France,  requiring  him  (563)  to  appear  in  court  and  testify 
in  behalf  of  the  defendant,  notwithstanding  the  provisions  of  the  arti- 
cle of  the  convention,  before  cited. 

By  the  terms  of  that  article,  it  is  stipulated  between  the  United 
States  and  France  that  their  con.suLs  shall  never  be  compelled  to  appear 
in  court  as  witnesses.  They  may,  however,  be  invited  to  attend,  and 
if  unable  to  do  so,  the  article  provides,  that  they  may  be  examined 
orally  at  their  houses,  or  their  depositions  taken. 

By  the  sixth  amendment  to  the  constitution  of  the  United  States, 
it  is  provided  that  the  accused  in  all  criminal  prosecutions  shall  enjoy 
the  right  to  have  compulsory  process  for  obtaining  witnesses  in  hia 
favor. 

J49 


CONSULAR  CASES 

It  is  urged  by  the  counsel  for  the  accused  that  this  right  is  sacred, 
and  secured  to  him  by  the  constitution  of  the  United  States;  that 
it  is  comprehensive  and  wihout  exception,  and  that  neither  by  law  nor 
treaty  can  he  be  deprived  of  the  right  of  compelling  the  attendance  of 
any  person  whose  testimony  may  be  material  to  his  defence. 

It  was  admitted  by  the  coimsel  of  M.  Dillon,  that  if  the  constitu- 
tion secures  to  the  accused  this  right  in  the  present  case,  he  cannot  be 
deprived  of  it  by  any  treaty  stipulation;  and  that  if  the  court  is 
called  upon  to  choose  between  allowing  a  constitutional  right  to  a 
prisoner  and  disregarding  a  treaty  stipulation,  or  denying  the  consti- 
tutional right  and  respecting  the  treaty,  its  highest  allegiance  is  due 
to  the  constitution,  and  the  rights  therein  guaranteed  must  be  main- 
tained. 

The  question  then  to  be  determined  is :  Is  the  treaty  stipulation  al- 
luded to  irreconcilably  in  conflict  with  the  constitutional  provision 
cited  ? 

In  approaching  the  consideration  of  this  question,  it  is  impossible 
for  the  court  not  to  be  profoundly  impressed  with  a  sense  of  its  im- 
portance— not  merely  abstractly,  but  on  account  of  consequences  its 
decision  may  involve.  On  the  one  hand,  it  is  asked  to  deny  the  ac- 
cused a  right  claimed  to  be  secured  under  the  fundamental  law  of  the 
land.  On  the  other,  it  is  urged  not  merely  to  hold  a  law  of  congress 
void  for  unconstitutionality — a  duty  at  all  times  the  most  (564)  deli- 
cate and  important  an  American  court  of  justice  is  called  upon  to 
perform — but  to  declare  a  solenm  treaty  stipulation,  entered  into  be- 
tween the  United  States  and  a  foreign  country,  to  the  faithful  ob- 
servance of  which  the  honor  of  the  nation  is  pledged,  inoperative  and 
void,  because  those  by  whom  it  was  made  had  no  power  to  enter  into 
such  engagements. 

By  the  constitutional  provision  referred  to,  the  accused  has  the 
right  to  compulsory  process  to  obtain  witnesses  in  his  favor. 

Does,  then,  this  provision  extend  to  every  person  within  our  ter- 
ritory, whether  or  not  he  be  an  ambassador  or  other  public  minister, 
and  whether  or  not  he  be,  by  treaty  stipulation  or  express  law,  ex- 
empted from  the  duty  of  obedience  to  a  subpoena  ?  And  can  the  court, 
on  his  disobeying  the  writ,  compel  his  obedience  by  fine  and  imprison- 
ment? 

If  the  accused,  by  virtue  of  the  constitutional  provision  in  this 
case,  can  compel  the  attendance  of  the  consul  of  France,  it  seems 
necessarily  to  follow  that  the  attendance  of  an  ambassador  could  in 
like  manner  be  enforced. 

The  immunity  afforded  to,  and  personal  inviolability  of  ambassa- 
dors now  universally  recognized  by  the  laws  of  nations,  has  been 

141 


CONSULAR  CASES 

deemed  one  of  the  most  striking  instances  of  the  advance  of  civiliza- 
tion and  the  progress  of  enlightened  and  liberal  ideas.  Though  resi- 
dent in  a  foreign  coimtry.  they  are,  says  Mr.  Chancellor  Kent,  ex- 
empted absolutely  from  all  allegiance  and  from  all  responsibility  to  the 
laws  of  the  country  to  which  they  are  deputed.  (1  Kent's  Com.  45.) 
Their  persons  have,  by  the  consent  of  all  nations,  been  deemed  invio- 
lable ;  nor  can  they,  says  the  same  high  authority,  be  made  amenable 
to  the  civil  or  criminal  jurisdiction  of  the  country.  By  fiction  of 
law  the  ambassador  is  considered  as  if  he  were  out  of  the  territory  of 
the  foreign  power,  and,  though  he  resides  within  the  foreign  state,  he 
is  considered  a  member  of  his  own  country,  retaining  his  original 
domicile,  and  the  government  he  represents  has  exclusive  cognizance 
of  his  conduct  and  control  over  his  person,  (1  Kent's  Com.  46.) 
Does,  then,  the  constitution  of  the  United  States,  by  the  provision  in 
(665)  favor  of  persons  accused  of  crime,  intend  to  subject  these  high 
functionaries  to  the  process  of  the  courts,  and  does  it  authorize  and 
require  the  courts,  in  case  of  disobedience,  to  violate  their  persons  and 
disregard  immunities  universally  conceded  to  them  by  the  laws  of 
nations,  by  imprisoning  them?  If,  as  is  the  received  doctrine,  the 
ambassador  cannot,  even  in  the  case  of  a  high  crime  committed  by 
himself,  be  proceeded  against,  it  is  obvious  that  for  a  lesser  offence  of 
a  contempt  or  disobedience  to  an  order  of  a  court,  he  would  a  fortiori 
not  be  amenable  to  the  law.  The  only  ground  upon  which  the  right 
of  a  court  to  compel  the  appearance  of  an  ambassador  by  its  pro- 
cess, and  to  punish  him  if  he  disobey  it,  can  be  placed,  is  that  the  con- 
stitution is,  in  this  case,  in  conflict  with  and  paramount  to  the  laws  of 
nations,  and  the  immunity  usually  conceded  to  ambassadors  is  by  the 
provision  in  favor  of  the  accused  in  criminal  cases  taken  away. 

But  the  privilege  of  ambassadors  from  arrest,  under  any  circum- 
stances, has  been  declared  by  congress  by  special  legislation.  By  the 
twenty-fifth  section  of  the  act  of  congress  of  April  30,  1790,  it  is  enact- 
ed that  "if  any  ^rrit  or  process  sued  out  of  any  of  the  courts  of  the 
United  States,  or  of  a  particular  state,  or  by  any  judge  or  justice 
therein  respectively,  whereby  the  person  of  an  ambassador  may  be  ar- 
rested or  imprisoned,  or  his  goods  distrained,  seized,  or  attached,  such 
writ  and  process  shall  be  deemed  and  adjudged  to  be  utterly  null  and 
void  to  all  intents,  construction,  and  purposes  whatever." 

Tender  this  act  it  is  apparent  that  no  attachment  can  issue  against 
an  ambassador,  whether  to  compel  his  appearance  as  a  witness,  or  for 
any  other  purpose. 

But  if  the  construction  of  the  constitutional  provision  contended 
for  by  the  accused,  be  sound,  this  enactment  must  be  disregarded,  and 
the  ambassador,  like  any  other  person,  must  be  attached. 

142 


CONSULAR  CASES 

It  is  clear  that  the  framers  of  the  enactment  above  cited  had  no 
idea  that  in  exempting  ambassadors  from  all  process  against  their 
persons,  they  were  depriving  parties  accused  of  a  right  to  compulsory- 
process  to  obtain  the  attendance  of  (568)  witnesses,  secured  to  them 
by  the  constitution.  One  of  two  things  is  evident :  either  that  the  con- 
situtional  provision  has  a  less  comprehensive  operation  than  is  claimed 
for  it,  or  that  this  enactment,  prohibiting  any  process  for  the  arrest 
of  an  ambassador,  in  any  case,  is  unconstitutional. 

The  legislative  interpretation  of  the  constitutional  provision  is 
the  more  significant,  as  the  framers  of  that  act  must  have  had  their 
attention  particularly  directed  to  that  provision,  for  by  the  twenty- 
ninth  section  the  right  of  the  accused  to  compel  the  attendance  of  his 
witnesses,  is  expressly  declared,  and  placed  upon  a  constitutional  basis. 

If,  then,  the  provision  of  the  constitution  does  not  authorize  the 
courts  to  compel  the  attendance  of  ambassadors,  because  they  are 
exempt  from  their  jurisdiction  on  general  principles  of  public  law,  a 
law  which  derives  its  authority  from  the  supposed  assent  of  all  civ- 
ilized nations,  a  like  exception  must  exist  in  favor  of  other  public 
agents,  on  whom  a  nation  has  expressly  and  by  solemn  treaty  agreed  to 
confer  a  similar  exemption. 

What,  then,  is  the  operation  and  effect  of  the  constitutional  pro- 
vision referred  to?  In  determining  this  question,  its  nature  and  ob- 
ject, and  the  evil  it  was  intended  to  remedy,  must  be  considered. 

By  the  ancient  rules  of  the  common  law,  the  party  accused  in 
capital  cases  had  no  right  to  exculpate  himself  by  the  testimony  of 
any  witnesses.  The  injustice  of  so  unreasonable  and  oppressive  a  rule 
induced  the  courts  to  relax  it,  and  the  practice  was  gradually  intro- 
duced of  examining  witnesses  for  the  accused,  but  not  upon  oath. 
Sir  Edward  Coke  denounces  this  practice  as  tyrannical  and  unjust, 
and  contended  that  in  criminal  cases  the  accused  was  entitled  to  have 
witnesses  sworn  for  him.  It  is  now  in  England,  by  statutes  compara- 
tively recent,  provided  that  the  accused  shall  in  all  cases  have  the  right 
of  having  witnesses  sworn  for  him  as  well  as  against  him.  I  am  not 
aware  that  he  even  yet,  in  that  country,  possesses  the  right  to  com- 
pulsory process  to  obtain  their  attendance. 

The  analogous  right  of  the  accused  to  have  the  assistance  of  coun- 
sel, does  not  to  this  day,  or  did  not  very  recently,  (567)  exist  in 
England  in  any  criminal  cases  except  indictments  for  treason. 

Such  was  the  state  of  the  common  law  when  the  provisions  giv- 
ing the  accused  the  right  to  compulsory  process  to  secure  the  attend- 
ance of  his  witnesses,  and  the  right  to  have  the  assistance  of  counsel, 
were  incorporated  into  the  constitution.  They  were  obviously  intend- 
ed to  abrogate  the  harsh  and  tyrannical  rules  of  the  common  law 

143 


CONSULAR  CASES 

which  have  been  referred  to,  and  to  place  the  accused  in  a  position  to 
make  his  defence  and  establish  his  innocence,  by  giving  him  rights  in 
all  respects  similar  and  equal  to  those  possessed  by  the  government  for 
establishing  his  guilt.  If,  then,  the  accused,  by  virtue  of  these  pro- 
visions, enjoys  rights  equal  to  those  of  the  prosecution,  and  stands, 
with  respect  to  witnesses,  on  the  same  footing  with  the  government, 
it  would  seem  that  the  object  of  the  constitution  is  accomplished. 
Such  seems  to  have  been  the  construction  given  by  congress  to  this 
provision  of  the  constitution. 

By  section  twenty-nine  of  the  crimes  act  of  April  30,  1790,  it  is 
provided,  "that  every  person  accused  or  indicted  under  that  act, 
shall  have  the  like  process  of  the  court  where  he  shall  be  tried,  to 
compel  his  witnesses  to  appear  at  his  trial  as  is  usually  granted  to 
compel  witnesses  to  appear  on  the  prosecution  against  them," 

The  fact  that  this  act  passed  by  the  first  congress  assembled  under 
the  constitution,  most  of  whose  members  had  been  members  of  the 
convention  which  framed  that  instrument,  gives  to  this  legislative  con- 
struction a  more  than  ordinary  importance. 

If,  then,  the  object  and  effect  of  the  constitutional  provision  were 
merely  to  give  to  the  accused  the  right  to  such  process  as  is  usually 
granted  to  compel  witnesses  to  appear  on  the  side  of  the  prosecu- 
tion against  them,  it  follows  that  if  by  general  principles  of  the  laws 
of  nations,  as  in  the  case  of  an  ambassador,  or  by  positive  treaty 
stipulations,  as  in  the  case  of  the  consul  of  France,  the  person  sought 
to  be  made  a  witness  be  beyond  the  process  of  the  court,  neither  the 
accused  nor  the  prosecution  is  entitled  to  process  against  him.  The 
ambassador  is,  as  we  have  seen,  not  amenable  (568)  in  any  respect 
to  the  laws  of  the  country  to  which  he  is  sent.  The  consul  is  by  a 
treaty,  which  is  the  supreme  law,  placed  beyond  the  reach  of  the 
process  of  the  court.  The  cases  seem  not  distinguishable  in  principle ; 
for  in  each  the  accused,  as  well  as  the  prosecution,  is  unable  to  secure 
the  attendance  of  the  witness,  because  he  is  beyond  the  reach  of  the 
court.  The  hardship  to  the  accused  is  in  no  respect  greater  than  if  the 
witness  were  in  a  district  or  in  a  foreign  country  into  which  the  pro- 
cess of  the  court  could  not  run. 

From  all  the  provisions  of  the  consular  convention,  it  is  obvious 
that  it  was  intended  to  clothe  the  consul  with  some  at  least  of  the  priv- 
ileges of  ambassadors,  and  so  far  as  compelling  his  attendance  as  a 
witness  is  concerned,  to  place  him  beyond  the  reach  of  the  process  of 
the  courts.  He  is,  therefore,  out  of  the  jurisdiction  to  the  same  extent 
and  in  the  same  manner  as  the  ambassador,  who  is  regarded,  by  a  fic- 
tion of  law,  as  retaining  his  domicile  in  his  own  country,  and  beyond 
the  jurisdiction  of  the  country  in  which  he  actually  resides. 

14^ 


CONSULAR  CASES 

It  is  urged  that  it  was  decided  by  Mr,  Chief  Justice  Marshall,  on 
Burr's  trial,  that  the  constitutional  provision  extends  to  all  persons 
whatever.  But  in  that  case,  the  point  to  be  determined  by  the  chief 
justice,  was  whether  the  accused  possessed  the  right  to  compulsory 
process  to  obtain  the  production,  by  the  president  of  the  United  States, 
of  papers  in  his  possession,  deemed  material  for  the  defence.  Chief 
Justice  Marshall  held  that  the  subpoena  duces  tecum  should  issue; 
but  in  treating  of  the  question  whether  it  could  issue  to  the  president 
of  the  United  States,  the  attention  of  the  court  was  exclusively  di- 
rected to  the  point  whether  by  law  the  president  was  exempt  from 
such  process.  The  case  of  an  ambassador,  exempted  by  national  law 
from  amenability  to  all  process,  or  of  a  consul,  exempted  by  express 
treaty,  was  not  before  the  court.  "If  an  exception  exists,"  says  the 
chief  justice,  "to  the  general  principle  that  all  persons  may  be  com- 
pelled to  testify  for  the  accused,  it  must  be  looked  for  in  the  law  of 
evidence."  Such  an  exception  does  exist  in  that  law  in  favor  of  the 
king;  but  not,  he  decides,  in  favor  of  the  president.  If,  (569)  how- 
ever, by  treaty  stipulation,  which  is  the  supreme  law,  an  exception 
exists  in  the  case  of  an  agent  of  a  foreign  government,  expressly  plac- 
ing him  beyond  the  reach  of  compulsory  process,  the  chief  justice  no- 
where intimates  that  in  such  a  case  the  process  could  issue. 

It  is  urged  that  if  this  exemption  by  treaty  is  recognized,  whole 
classes  of  residents  might  be  in  like  maner  placed  bej^ond  the  reach 
of  the  process,  and  the  accused  might  be  deprived  in  many  cases  of  all 
means  of  making  his  defence. 

But  it  is  admitted  that,  if  the  testimony  of  the  witness  cannot  be 
received,  or  if  from  infamy  or  other  reasons  he  is  incompetent  to  tes- 
tify, compulsory  process  cannot  issue.  The  same  evil  apprehended  in 
the  hypothetical  case,  just  mentioned,  would  arise  were  congress  to 
declare  a  class  of  residents  incompetent  to  testify ;  and  that  they  have 
the  power  to  do  so  as  far  as  relates  to  proceedings  in  the  federal  courts 
is  undeniable.  But  it  seems  to  me  that  the  accused  cannot  justly  com- 
plain of  any  hardship.  He  has  allowed  to  him  compulsory  process  to 
obtain  the  attendance  of  all  persons  within  the  jurisdiction,  and 
amenable  to  the  process  of  the  court.  If  any  person  whose  attendance 
he  desires  is  not  subject  to  the  process  of  the  court,  and  quoad  hoc, 
out  of  the  jurisdiction,  the  accused  is  in  the  same  position  as  if  his 
witness  had  left  the  country,  or  were  dead,  or  if,  when  placed  on  the 
stand,  he  had  availed  himself  of  his  privilege  of  not  criminating  him- 
self, or  other  similar  right,  and  thus  withheld  testimony  of  importance. 

On  a  careful  consideration  of  the  whole  subject,  I  have  come  to 
the  conclusion  that  this  court  has  no  power  to  issue  process  to  compel 
the  attendance  of  the  consul  of  France  in  this  case.    But,  on  another 

145 


CONSULAR  CASES 

ground,  it  is  clear  to  me  that  this  court  ought  not  to  compel  obedience 
to  the  subpoena  in  this  case.  The  writ  issued  was  a  subpoena  duces 
tecum,  commanding  'M.  Dillon  to  produce  in  court  a  certain  document, 
said  to  be  in  his  possession. 

It  has  not  been  disputed  that  the  right  of  the  accused  under  the 
constitution,  to  obtain  a  subpoena  duces  tecum  rests  on  the  same 
groimd  as  his  right  to  process  to  compel  the  attendance  of  witnesses 
to  testify  orally  in  his  favor.  The  (570)  very  letter  of  the  constitu- 
tion embraces,  it  is  true,  only  the  latter  case,  but  it  is  declared  by  Mr. 
Chief  Justice  Marshall  (Burr's  Trial,  p.  183),  "that  the  constitutional 
and  legal  right  of  an  accused  to  obtain  process  to  compel  the  attend- 
ance of  his  witnesses,  extends  to  their  bringing  with  them  such 
papers  as  may  be  material  for  the  defense."  ''The  literal  distinc- 
tion," observes  the  chief  justice,  "which  exists  between  the  cases, 
is  too  much  attenuated  to  be  countenanced  in  the  tribunals  of  a  just 
and  humane  nation." 

But  in  determining,  in  the  first  instance,  whether  the  subpoena 
to  produce  the  required  document  shall  issue,  or,  as  in  this  case,  the 
subpoena  having  issued,  in  deciding  whether  the  witness  shall  be  com- 
pelled to  produce  it,  the  court  is  required  to  exercise  a  discretion, 
"Not,"  says  Mr.  Chief  Justice  Marshall,  "that  an  overstrained  rigor 
should  be  used  with  respect  to  his  right  to  apply  for  papers  deemed 
by  himself  to  be  material,  but  in  order  to  see  that  the  papers  in 
question  are  relevant  to  the  case,  and  such  as  could  be  introduced  into 
the  defence." 

It  was  for  these  reasons  that  the  court,  on  the  argument,  required 
the  defendant  to  disclose  by  affidavit  the  nature  of  the  document  he 
sought  to  have  produced.  That  affidavit  the  counsel  for  the  defendant 
have  declined  to  furnish.  The  court  is  therefore  wholly  uninformed 
whether  the  document  is  such  as  could  be  received  in  evidence  if  pro- 
duced, or  whether  it  is  of  such  a  character  as  that  the  court  ought  to 
compel  its  production.  If  the  document  be  wholly  irrelevant  or  in- 
admissible in  testimony,  it  is  clear,  from  the  observations  of  Mr.  Chief 
Justice  Marshall,  that  the  court  will  not  compel  its  production.  And 
if,  as  there  is  reason  to  suppose,  it  is  one  of  the  official  documents  of 
the  French  consulate,  by  the  very  terms  of  the  treaty  its  production 
cannot  be  compelled. 

From  the  tenor  of  Mr.  Chief  Justice  Marshall's  observations  on 
Burr's  trial,  it  is  apparent  that  the  right  of  the  accused  to  compel  the 
production  of  a  document,  is  not  co-extensive  with  his  right  to  com- 
pel the  attendance  of  a  witness  to  testify  orally.  In  considering  the 
nature  of  the  discretion  the  court  will  exercise  in  awarding  a  subpoena 
(671)  duces  tecum,  he  observes:  "If  it  be  apparent  that  for  state  rea- 

146 


CONSULAR  CASES 

sons  the  papers  cannot  be  introduced  into  the  defence,the  subpoena  will 
not  issue."  And  he  afterward  says,  "that  there  may  be  matter,  the 
production  of  which  the  court  will  not  require,  is  certain."  It  seems, 
then,  from  the  observations  of  the  chief  justice,  that  though  a  sub- 
poena may  go  even  to  the  president  of  the  United  States,  to  obtain  his 
testimony,  the  accused  does  not  enjoy  a  co-extensive  right  to  obtain 
the  production  of  any  paper  he  may  require  for  his  defence.  What- 
ever hardship  to  the  accused  this  rule  may  occasionally  work,  the  evil 
does  not  seem  greater  than  arises  in  ordinary  cases  where  a  witness 
on  the  stand  is  excused  for  special  reasons  from  testifying  the  facts 
within  his  knowledge,  no  matter  how  important  to  the  prisoner  the 
evidence  of  those  facts  may  be. 

By  the  third  article  of  the  consular  convention  between  the  Unit- 
ed States  and  France,  it  is  stipulated  that  the  authorities  shall  in  no 
case  examine  or  seize  the  papers  deposited  in  consular  offices.  If  a 
court  can  compel  their  production,  it  is  obvious  that  the  protection  in- 
tended to  be  given,  is  gone.  If,  then,  the  court  will  not  require  the 
production  of  papers  which,  for  state  reasons,  ought  not  to  be  pro- 
duced, it  would  seem  that  in  a  case  like  the  present,  an  indictment  for 
a  misdemeanor,  it  will  not,  even  if  it  has  the  power,  violate  the  im- 
munity and  disregard  the  privileges  secured  by  treaty  to  the  agents  of 
a  foreign  government. 

In  a  capital  case,  that  the  accused  ought,  in  some  form,  says  Mr. 
Chief  Justice  Marshall,  to  have  the  benefit  of  papers  which  the  court 
will  not  require  the  production  of,  is  a  position  which  the  court  would 
very  reluctantly  deny.  What  ought  to  be  done  imder  such  circum- 
stances, presents,  he  observes,  a  delicate  question.  But  he  does  not 
intimate  that  in  a  case  of  misdemeanor,  papers  which  by  the  supreme 
law  cannot  be  seized  or  examined,  shall  be  required  to  be  produced. 
The  most  obvious  course  in  such  a  ease,  is  to  admit  secondary  evidence 
of  their  contents.  If  the  accused  is  unable  to  furnish  such  evidence, 
he  is  in  no  worse  position  than  the  ordinary  case  where  accident  or 
misfortune  has  put  out  of  his  reach  material  testimony. 

(572)  I  think  it  clear,  therefore,  that  in  a  case  like  the  present, 
where  the  party  subpoenaed  is  the  consul  of  France,  who  is  required  to 
produce  a  document  in  his  possession,  it  is  not  only  the  right,  but  the 
duty  of  the  court  to  require  the  defendant  to  show  that  the  document 
is  not  an  official  paper  protected  by  law  from  examination  and  seizure. 
And  that  on  the  failure  of  the  accused  to  furnish  the  required  in- 
formation, the  subpoena  duces  tecum  will  not  be  allowed ;  or  if  issued, 
will  not  be  enforced. 

I  therefore  think  that,  on  this  ground  alone,  compulsory  process 
ought  to  be  refused. 

147 


CONSULAR  CASES 
DIVINA  PASTORA,  THE,  (1819,  U.  S.— Spain) 

4   Wheat.  52. 

Marshall,  Supreme  Court. 

(55)  (Extract)  The  replication  of  the  Spanish  consul  states,  that 
inasmuch  as  the  said  Utley,  in  his  plea,  admits  that  (56)  the  said  ves- 
sel, and  the  cargo  laden  on  board,  were,  on  the  31st  day  of  October, 
1816,  the  property  of  a  subject  or  subjects  of  his  majesty  Ferdinand 
VII.,  the  said  consul  claims  the  same,  as  the  property  of  such  sub- 
ject or  subjects,  the  names  of  whom  are  to  him,  at  present,  unknown ; 
excepting  that  he  verily  believes  the  same  to  be  the  lawful  property  of 
Antonio  Seris,  as  he,  in  his  petition,  hath  set  forth.  And  avers  that 
the  same  ought  to  be  retsored  and  delivered  up  for  the  use  of  the 
Spanish  O'VNTier  or  o\Miers. 

DREE  GEBROEDERS,  THE,  v.  VANDYK,  (1802,  U.  S.) 

4  Rob.,  C.   232. 

Sir  William  Scott,  High  Court  of  Admiralty. 

SIR  W.  SCOTT  (Extract)  His  affidavit  states,  ''That  he  was 
requested  by  the  president  of  the  United  States  to  take  the  command 
of  an  armed  ship  against  the  French;  but  on  declining  that  offer,  he 
was  persuaded  to  accept  the  office  of  consul  general  for  Scotland." 
In  this  capacity  he  says,  ''he  has  not  acted  farther  than  to  appoint 
deputies."  "Whether  there  are  any  deputies  now  acting  under  his 
appointment,  does  not  appear.  If  so,  it  would  be  a  strong  circum- 
stance to  affect  him  with  a  British  residence,  as  long  as  there  are  per- 
sons acting  in  an  official  station  here,  and  deriving  their  authority 
from  him. 

DUFOUR,  SUCCESSION  OF,  (1855,  U.  S.— France) 

10  La.  Am.  391. 

Slidell,  Supreme  Court  of  Louisiana. 

(Extract)  The  French  consul  in  New  Orleans  founds  his  right  to 
intervene  in  this  case,  upon  the  4th  article  of  the  consular  convention 
between  his  majesty,  the  emperor  of  the  French  and  the  president  of 
the  United  States,  dated  Washington  city,  the  23d  of  Feb.,  1853. 

He  relies  on  the  7th  article  of  said  convention,  to  repel  the  at- 
tempt of  the  treasurer  of  the  state  of  Louisiana  to  burden  the  French 
heirs  of  successions  residing  in  France  with  the  tax  of  ten  per  cent,  im- 
posed by  the  4th  section  of  the  act  of  the  legislature  of  1842,  entitled : 
An  act  to  increase  the  revenue  of  the  state,  on  all  sums,  or  the  value 

148 


CONSULAR  CASES 

of  all  property,  which  may  accrue  to  foreign  heirs  in  successions 
opened  in  this  state. 

[Court  decided  in  favor  of  consul. — Ed.] 
DUMAS,  INTEEDICTION  OF  JOSEPH,  (1880,  U.  S.) 

32  La.  Ann.  679. 

Bermudez,  Supreme  Court  of  Louisiana. 

(969)  (Extract)  IV.  Besides:  the  service  of  that  informal  and 
illegal  citation  was  made  by  the  U.  S.  consul  in  Paris,  on  the  defend- 
ant. We  know  of  no  law,  federal  or  state,  which  vests  national  rep- 
resentatives with  the  power  of  serving  judicial  process  of  state  courts 
on  parties  within  their  sphere  of  representative  action.  We  have, 
nevertheless,  requested  counsel  to  inform  us  on  the  subject,  but  they 
have  failed  to  do  so.  It  canot  be  conceived  that  the  general  govern- 
ment sends  representatives  abroad  for  the  purpose  of  acting  as  the 
executive  officers  of  the  different  state  courts  in  the  union.  It  is  true 
that  those  representatives  sometimes  act  as  the  ministerial  officers  of 
such  courts,  as,  for  instance,  to  execute  commissions  to  procure  testi- 
mony, and  the  like ;  but  they  do  so  with  the  special  authority  of  state 
legislation,  providing  distinctly  for  such  cases.  The  inference,  there- 
fore, is,  that,  even  if  the  citation  could  have  issued  and  was  valid, 
the  service  of  it  did  not  take  place  by  the  instrumentality  of  one  au- 
thorized by  law  to  make  it. 

DTJRAND  V.  HALBACH,  (1835,  U.  S.) 

1  Miles  46. 

Pettit,  District  Court  of  Philadelphia. 

(Extract)  The  privilege,  as  a  national  one,  however,  could  not  be 
waived  by  a  consul's  omitting  to  plead  it,  or  by  his  withholding  the 
suggestion  of  it  till  after  judgment. 
•       '*  *  *  •  •  *  *« 

The  history  of  the  case  (Davis  v.  Packard)  is  somewhat  remark- 
able, but  it  is  sufficient  for  our  present  purpose  to  state,  that  after  the 
record  had  been  twice  carried  up  to  the  supreme  court  of  the  United 
States,  it  was  found  that  the  only  mode  of  giving  the  defendant  relief, 
was  to  send  him  back  to  the  supreme  court  of  New  York,  that  he  might 
by  suing  out  and  prosecuting  a  writ  of  error  coram  nobis,  establish  the 
fact  of  his  consulship,  and  obtain  in  that  court  a  reversal  of  their  own 
judgment. 

Whether  the  proper  exhibition  of  the  proof  of  foreign  consulship, 
as  to  one  defendant,  will  avail  the  other,  is  a  question  upon  which  no 

149 


CONSULAR  CASES 

opinion  is  intimated.    The  court  will  consider  that  point,  should  it  be 
presented. 

The  remedy  just  pointed  out  being,  in  the  opinion  of  the  court 
the  true  one,  the  defendant's  consul  takes  nothing  by  his  present  mo- 
tion. 

EADY,  IN  RE,  (1838,  Great  Britain) 

6  D.  P.  C.  615. 

Tindal,  Common  Pleas. 

Merewcther,  Serjt.  moved  that  the  acknowledgement  of  the  ap- 
plicant, who  was  a  married  woman,  might  be  (616)  taken,  under 
the  fines  and  recoveries  act,  (3  &  4  Will.  4,  c.  74.)  The  applicant 
was  a  resident  at  Hamburgh,  and  the  affidavit  of  verification  of  the 
certificate  of  acknowledgement  was  made  before  the  British  consul 
there.  On  the  papers  being  produced  to  the  officer  of  the  court,  he 
refused  to  take  them  because  they  w^ere  not  sworn  before  the  proper 
officer.  It  was  deposed,  however,  that  the  consul  was  the  only  person 
in  Hamburgh,  who  would  or  could  swear  the  affidavit:  and  it  was 
submitted  that  the  court  would  deal  with  the  application  as  the  ne- 
cessity of  the  case  required, 

PARK,  J. — There  may  be  a  question  whether  it  would  be  a  legal 
conveyance  of  the  property,  if  the  affidavit  is  not  properly  sworn. 

Merewether  submitted  that  it  was  only  for  the  court  to  be  satis- 
fied, and  that  the  allegation  that  the  consul  was  the  only  person 
who  would  swear  it,  should  be  deemed  sufficient. 

TIXDALL,  C.  J. — You  had  better  renew  the  application  with 
fresh  affidavits,  and  let  there  be  some  one  who  has  applied  to  the 
courts,  who  has  got  a  direct  and  distinct  refusal  to  swear  the  affi- 
davits. Let  it  be  some  native  authority,  and  let  the  authority  be 
certified  by  the  consul. 

On  a  subsequent  day  in  term, 

Wilde,  Serjt.,  renewed  the  application,  and  produced  affidavits, 
in  which  it  was  sworn,  that  an  agent  had  been  sent  to  Hamburgh, 
with  proper  instructions,  and  he  had  procured  an  affidavit  of  verifi- 
cation to  be  sworn  before  a  judge  of  one  of  the  native  courts.  The 
affidavit  was  in  German,  but  there  was  a  translation  of  it  into  Eng- 
lish, which  was  verified  by  a  notary,  and  the  oath  had  been  adminis* 
tered  in  German,  but  was  interpreted  to  the  deponent  in  English. 
The  signature  of  the  deponent,  how-  (617)  ever,  was  not  attached  t© 

150 


CONSULAR  CASES 

the  afifidavit,  it  being  contrary  to  the  practice  of  the  courts  in  Ham- 
burgh, that  any  signature  should  be  attached  to  an  affidavit,  except 
that  of  the  judge  before  whom  the  oath  was  administered.  The  signa- 
ture of  the  judge  was  here  appended  to  the  document,  and  it  was 
verified  by  a  notary.  It  was  besides  sworn,  that  the  court  refused 
to  swear  the  affidavit  in  the  English  language,  and  that  there  was  no 
person  in  Hamburgh  authorized  to  swear  such  an  affidavit,  except  the 
English  consul,  and  the  affidavit  sworn  before  him,  and  which  had  be- 
fore been  produced,  was  now  in  court. 

TINDAL,  C.  J.— There  is  no  objection  to  the  oath  having 
been  administered  in  German  and  interpreted;  the  same  rule  of 
practice  is  adopted  here.  The  only  thing  wanted  is  an  affidavit  to 
state  that  it  is  the  law  of  Germany,  that  the  deponent  is  not  allowed 
to  sign  his  affidavit. 

Wilde  submitted,  that  the  signature  of  the  judge  being  appended 
to  the  affidavit  was  a  sufficient  guarantee  of  the  course  always  pur- 
sued. 

TINDAL,  C.  J. — I  think  the  clerk  had  better  swear  that  he  be- 
lieves the  course  which  has  been  adopted,  is  that  which  is  regularly 
taken  in  Germany.  To  the  eye  of  a  person  merely  looking  at  the 
affidavits,  the  evidence  would  otherwise  appear  incomplete. 

Rule  accordingly. 

ELIZABETH,  THE,  (1862,  U.  S.— Great  Britain) 
1  Blatchf .  Prize  Cases  250 ;  Fed.  Cases  4,350. 
Betts,  District  Court. 

(Extract)  [Acting  British  consul  filed  a  claim,  to  which  was 
subjoined]  his  own  test  oath  to  such  ownership,  his  knowledge,  as 
stated  by  him,  being  acquired  "from  his  position  as  present  acting 
consul  in  the  port  of  New  York,  and  from  conversation  with  the  master 
and  crew  of  the  above  steamer  Elizabeth," 

ELWIN  KREPLIN,  THE,  (1870,  U.  S.— Germany) 

Fed.  Cases  4,427. 
Benedict,  District  Court. 

[Opinion  reserved  in  the  circuit  court.  See  (The)  Elwine 
Kreplin,  Fed.  Cases  4,  426. 

A  very  able  discussion   of  consular   jurisdiction   over   seavnen. 

151 


CONSULAR  CASES 

Judge  Benedict's  decision  seems  more  in  harmony  with  our  juris- 
prudence than  that  of  the  higher  court. 

Also  discusses  right  of  treaty  making  power  to  curtail  jurisdic- 
tions of  the  courts. Ed.]  . 

EL  WINE  KREPLIN,  THE,  (1872,  U.  S.— Germany) 
9  Blatchf.  43S;  Fed.  Cases  4,426. 
Woodruff,  Circuit  Court. 

[Reverses  the  decision  of  the  district  court  in  the  Elwin  Krep- 
lin,  Fed.  Cases  4,  427.  Supreme  court  refuses  to  issue  a  mandamus  to 
compel  the  circuit  court  to  pass  upon  the  merits.  See  (ex  parte) 
Newman.  In  this  case  court  declared  that  it  had  no  jurisdiction  over 
a  dispute  regarding  wages  against  the  protest  of  the  consul  who  is 
given  jurisdiction  by  treaty. — Ed.] 

EITDORA,'  THE,  (1901,  U.  S.— Great  Britain) 
110  Fed.  Kep.  430. 
McPherson,  District  Court. 

In  Admiralty.     Suit  by  seamen  to  recover  wages. 
J.  B.  McPIIERSON,  District  Judge.     The  parties  to  this  suit 
have  agreed  upon  the  following  facts: 

"It  is  stipulated  that  at  the  argument  of  the  above  case  the  following  facts 
shall  be  admitted  with  the  same  effect  as  if  proved  by  depositions  taken  in  ac- 
cordance with  the  provisions  of  the  revised  statutes  or  the  rules  of  this  court: 

"  (1)  That  the  bark  Eudora  at  the  time  hereinafter  mentioned  was  a  British 
vessel  duly  registered  under  the  laws  of  Great  Britain,  and  hailing  from  the  port 
of  Halifax,  Nova  Scotia. 

"  (2)  That  on  January  22,  1900,  the  said  bark  was  in  the  port  of  New  York, 
and,  being  about  to  proceed  to  sea,  B.  M.  Patterson,  Edward  Jansen,  Sven  Free- 
man, E.  Thompson,  Simon  Anderson,  and  Carl  Stevenson,  the  libelants,  one  or 
more  of  whom  were  American  citizens,  shipped  as  seamen  thereon,  (431)  signing 
the  written  shipping  articles  required  by  the  British  law,  for  'a  voyage  from  Port- 
land, Maine,  to  Rio,  and  for  any  ports  or  places  within  the  limits  of  65  degrees 
north  and  70  degrees  south  latitude,  trading  to  and  fro  as  required,  not  to  exceed 
twelve  calendar  months,  final  port  of  discharge  to  be  in  the  United  States  of 
America  or  Canada,'  at  the  rate  of  'one  shilling  for  45  days,  and  twenty  dol- 
lars per  month  thereafter.' 

"  (3)  That  at  the  time  said  shipping  articles  were  signed  the  sum  of  twenty 
dollars  was  paid  on  account  of  each  of  the  libelants,  and  with  the  consent  of  each 
of  them,  to  the  shipping  agent  through  whom  they  had  been  employed  by  the 
master  of  said  bark.  Said  payments  were  made  on  account  of  indebtedness  due 
by  the  said  libelants  to  the  shipping  agent  for  board  and  for  goods  sold  to 
them  oj  him. 

I)  That,  as  required  by  the  laws  of  Great  Britain,  the  said  seamen  were 

*V-  eversed  in  Patterson  v.  The  Eudora,  190  U.  S.  169. 

152 


CONSULAR  CASES 

engaged  in  the  presence  of  the  British  vice  consul  at  the  port  of  New  York,  and 
said  contract  was  made  with  his  sanction. 

"(5)  That  thereafter  said  vessel  proceeded  upon  a  voyage  to  Turk's  Island, 
and  thence  to  Philadelphia,  when  and  where  said  voyage  was  completed  and  the 
said  libelants  were  discharged;  that  during  the  whole  time  the  libelants  were 
in  the  service  of  said  vessel  they  performed  their  duties  as  seamen;  that  at  the 
time  of  the  arrival  of  said  ship  at  Philadelphia,  and  at  the  time  they  were  dis- 
charged, no  wages  were  due  to  the  libelants  by  the  terms  of  the  contract  contained 
in  said  shipping  articles. 

"(6)  That  the  libelants  each  claim  to  recover  the  sura  of  $26.66  2-3,  being 
wages  at  the  rate  of  $20  per  month  from  the  time  of  shipment  on  January  22, 
1900,  until  the  date  of  their  discharge  on  March  3,  1900. 

"(7)  That  Karl  Svenson,  one  of  the  libelants,  designated  in  the  libel  as 
Carl  Stevenson,  has  signed  the  shipping  articles  at  the  British  consulate,  in 
Philadelphia,  acknowledging  the  recipt  of  all  wages  due  him  for  said  voyage, 
and  freeing  the  bark  from  all  liability  therefor. 

"  (8)  That  proof  of  the  law  of  Great  Britain  is  waived,  and  it  is  agreed  that 
the  law  thereof  as  contained  in  the  printed  reports,  statutes,  and  text-books  shall 
be  received  with  the  same  effect  as  if  regularly  proved,  subject,  however,  to  the 
right  of  the  libelants  to  object  upon  any  other  ground  than  the  mere  formality 
of  proof. 

"(9)  The  contract  specified  in  said  shipping  articles,  and  the  payment  of 
said  sum  of  twenty  dollars  to  the  said  shipping  agent,  were  not  contrary  to  or 
prohibited  by  the  laws  of  Great  Britain;  but  it  is  admitted,  for  the  purposes  of 
this  case,  that  said  payment  is  contrary  to  the  act  of  congress  of  December  21, 
1898,  if  that  act  is  properly  applicable  to  the  contract  in  this  case." 

The  purpose  of  the  suit  is  to  obtain  a  decision  upon  the  scope 
of  section  24  of  the  act  of  December  21,  1898  (30  Stat.  763),  which 
forbids  the  payment  of  a  seaman's  wages  in  advance  to  himself  or 
to  any  other  person,  and  especially  to  obtain  a  decision  upon  the 
scope  of  clause  "f"  of  that  section,  which  declares  "that  this  sec- 
tion shall  apply  as  well  to  foreign  vessels  as  to  vessels  of  the  United 
States;  and  any  master,  owner,  consignee  or  agent  of  any  foreign 
vessel,  who  has  violated  its  provisions,  shall  be  liable  to  the  same 
penalty  that  the  master,  owner  or  agent  of  a  vessel  of  the  United  States 
would  be  for  a  similar  violation,  provided  that  treaties  in  force  be- 
tween the  United  States  and  foreign  nations  do  not  conflict." 

There  is  no  formal  treaty  between  Great  Britain  and  the  United 
States  upon  this  subject,  and  the  question  must  be  determined  by  the 
application  of  general  legal  principles.  In  my  opinoin,  the  suit  can- 
not be  maintained,  for  at  least  two  of  the  reasons  urged  at  the  argu- 
ment by  counsel  for  the  ship,  namely:  First,  because  the  act  of  1898 
does  not  apply  to  the  libelants;  and,  second,  because  it  is  (432)  not 
within  the  power  of  congress  to  regulate  the  internal  affairs  of  a  ves- 
sel sailing  under  a  foreign  flag.  I  regard  both  these  propositions  as 
established  by  the  supreme  court  of  the  United  States  in  Ross  v. 

153 


CONSULAR  CASES 

Mclntyre,  140  U.  S.  453,  11  Sup.  Ct.  897,  35  L.  Ed.  581,  and  for  that 
reason  I  shall  not  discuss  them.  It  is  enough,  I  think,  merely  to  say 
in  support  of  tlie  first  proposition  that  the  act  of  1898  does  not  apply 
to  the  libelants,  because  the  statute,  as  its  title  declares,  is  intended 
to  "amend  the  laws  relating  to  American  seaman,  for  the  protection 
of  such  seamen,  and  promote  commerce;"  and  it  cannot,  therefore, 
apply  to  seamen,  even  if  they  are  American  by  birth  or  naturaliza- 
tion, that  have  regularly  shipped  upon  a  British  vessel,  and  have 
thereby  become  British  seamen  for  the  time  being.  In  support  of 
the  second  proposition,  it  may  be  added  that  a  foreign  vessel  is  a  part 
of  the  territory  of  the  country  to  which  she  belongs,  and  that  con- 
gress has  no  inherent  power  to  control  or  prescribe  rules  for  her 
domestic  aflFairs,  such  as  the  terras  upon  which  she  ships  her  crew,  or 
the  wages  she  agrees  to  pay.  In  certain  respects,  a  foreign  ship  in 
our  ports  is  ,  no  doubt,  subject  to  the  laws  of  the  United  States ;  but 
the  government  and  pajTnent  and  treatment  of  the  crew  are  matters 
that  are  properly  held  to  concern  the  ship  and  the  crew  alone,  sub- 
ject to  the  law  of  the  flag. 

The  libel  must  be  dismissed,  but  without  costs. 

EVANGELISTKIA,  THE,  (1876,  Great  Britain— Greece) 

2  P.  D.  241;  46  L.  J.,  Adm.  1. 

Sir  Robert  Phillimore,  High  Court  of  Admiralty. 

[Court  accepts  jurisdiction  at  instance  of  Greek  consul  when  ship 
and  all  parties  are  Greek. 

Consul  also  asks  court  to  execute  decree  of  Greek  court. — Ed.] 

FALCON.  THE,  (1805,  Great  Britain— U.  S.) 

6  Kob.,  C.  194. 

Sir  William  Scott,  High  Court  of  Admiralty. 

(197)  (Extract)  He  is,  it  seems  invested  with  the  character 
of  the  American  consul  at  Bourdeaux;  and  certain  it  is,  that  an 
American  consul  resident  in  France  is  subject  to  all  the  disabilities 
of  a  French  merchant,  as  to  the  power  of  becoming  a  claimant  in  this 
court; 

PALLS  OF  KELTIE,  THE,  (1902,  U.  S.) 
114   Fed.   Rrp.  :',Z7. 

Hanford,  District  Court. 

[U.  S.  courts  cannot  refuse  jurisdiction  in  a  case  where  the 
libellant  is  an  American  citizen — will  also  determine  the  case  of  co- 

154 


CONSULAR  CASES 

libellants — treaty  making  power  no  right  to  take  a\/ay  citizen's 
appeal  to  courts  of  U.  S. — treaty  only  applies  to  alien  seamen  as  is 
sho"WTi  by  statute  regarding  remission  of  deserters. — Ed.] 

FAREZ,  IN  RE  FRANQOIS,  (1870,  U.  S.— Switzerland) 

7   Blatchford  345. 

Blatchford,  Circuit  Court. 

[Complaint  in  extradition  case  verified  by  foreign  consul  suf- 
ficient if  made  officially  although  not  based  on  personal  knowledge. — 
Ed.] 

(Extract)  The  prisoner  had  the  right  to  call  the  Swiss  consul, 
who  was  the  complainant,  as  a  witness,  and  examine  him  at  any  stage 
of  the  case,  but  he  could  not  properly  claim  the  right  to  cross-ex- 
amine him  before  any  other  evidence  was  offered,  when  it  appeared 
on  the  face  of  the  complaint  that  the  consul  did  not  pretend  to  have 
any  personal  knowledge  of  the  matters  stated  in  the  complaint. 

FARMER,  SUCCESSION  OF,  (1862,  U.  S.) 
1  Rob.  270;  Hennen's  La.  Dig.  Ed.  1861,  p.  582. 
Garland,  Supreme  Court  of  Louisiana. 

(Extract)  The  case  is  in  every  material  feature  similar  to  that 
of  the  executors  of  Alexander  Wedderburn,  ante.  p.  263,  which  has 
been  just  now  decided,  and  we  have  come  to  the  same  conclusion 
in  relation  to  it. 

FATTOSINI,  MATTER  OF,  (1900,  U.  S.— Italy) 
67  N.  Y.  Supp.  1119;  33  Misc.  18. 
Silkman,  Surrogate  Court,  New  York, 

(1120)  SILKMAN,  S.  This  is  an  application  upon  the  peti- 
tion of  Giovanni  Branchi,  consul  general  of  Italy,  for  the  issuance  of 
letters  of  administration  to  him  upon  the  estate  of  the  above-named 
decedent,  an  Italian  subject,  who  died  and  left  property  within  the 
county  of  Westchester.  The  petition  alleges  that  the  decedent  left, 
him  surviving,  a  widow  and  two  minor  children,  his  only  next  of  kin, 
all  residing  at  Castelletto,  Verona.  Italy.  In  the  absence  of  creditors, 
under  the  state  statute  the  administration  should  go  to  the  county 
treasurer,  but  the  question  is  presented  whether  or  not  the  treaty 
between  the  United  States  and  Italy  supersedes  the  state  law,  and 
whether  or  not  the  treaty  authorizes  and  empowers  the  consul  general 
to  administer  upon  the  estates  of  Italian  subjects  dying  within  the 
jurisdiction  of  his  consulate.     The  rights  of  the  consul  general  of 

155 


CONSULAR  CASES 

Italy  .^.voider  consideration  in  this  court  and  discussed  in  Re 

Tart^ix  Estate,  12  Misc.  Rep.  245,  33  N.  Y.  Supp.  1121,  and  it 
■was  there  eld  that  the  distributive  shares  in  the  estate  of  an  Italian 
subject  b  lOnging  to  next  of  kin  resident  in  Italy  were  payable  to  the 
consul  general,  and  a  decree  was  made  directing  the  county  treasurer, 
with  whom  the  distributive  shares  had  been  deposited,  to  make  such 
payment.  There  can  be  no  question  that  state  statutes  must  give  way, 
in  so  far  as  they  are  not  in  accord  with  the  obligations  of  the  federal 
government  imder  its  treaties  with  foreign  nations;  and  they  must 
be  construed,  and  the  procedure  of  local  courts  must  be  made  to  con- 
form, as  nearly  as  practicable,  to  the  treaty  obligations  of  the  federal 
gon^emment.  Treaty  provisions  are  to  be  construed  with  much 
more  liberality  than  legislative  enactments.  Terms  and  words  used 
in  the  former  are  to  be  given  the  broadest  meaning  in  order  to  effect- 
uate the  liberal  intentions  of  the  high  contracting  parties.  Due  re- 
gard must  be  had  to  difference  in  languages,  nice  (1121)  distinctions 
must  be  avoided,  and  the  great  purpose  of  convenient  international 
intercourse  must  be  borne  in  mind.  It  has  been  said  that  a  foreign 
consul,  without  specific  authority,  has  the  general  right  to  protect  the 
rights  and  property  of  a  person  of  his  nation  within  the  jurisdiction 
of  his  consulate  (The  Bello  Corrunes,  6  Wheat.  168,  5  L.  Ed.  229), 
and  that  foreign  consuls  have  power  to  administer  upon  the  estates  of 
their  fellow  subjects  deceased  within  their  territorial  consulate. 
Wheat.  Int.  Law  (2d  Ed.)  151,  and  Wools.  Int.  Law,  §  96.  While 
there  may  be  this  inherent  power,  a  fair  construction  of  the  treaty 
with  Italy  gives  to  the  consul  general  specifically  the  power  claimed. 
Article  22  of  the  commercial  treaty  of  1871  provides  that : 

' '  The  citizens  of  each  of  the  contracting  parties  shall  have  power  to  dispose 
of  their  personal  goods  within  the  jurisdiction  of  the  other,  by  a  sale,  donation, 
testament  or  otherwise,  and  the  representatives,  being  citizens  of  the  other  party, 
shall  succeed  to  their  personal  goods,  whether  by  testament  or  aft  intestato,  and 
they  may  take  possession  thereof,  either  by  themselves  or  others  acting  for  them, 
and  dispose  of  the  same  at  their  vnU,  paying  such  dues  only  as  the  inhabitants 
of  the  country  wherein  said  goods  are  shall  be  subject  to  pay  in  like  cases." 

Articles  9,  16,  and  17  of  the  consular  treaty  of  1878  provide: 

"Art.  9.  Consuls  general,  consuls,  vice-consuls,  and  consular  agents  may 
have  recourse  to  the  authorities  of  the  respective  countries  within  their  district, 
whether  federal  or  local,  judicial  or  executive,  for  the  purpose  of  complaining  of 
any  infraction  of  the  treaties  or  conventions  existing  between  the  United  States 
and  Italy,  as  also  in  order  to  defend  the  rights  and  interests  of  their  country- 
men. ' ' 

"Art.  16.  In  case  of  the  death  of  a  citizen  of  the  United  States  in  Italy,  or 
of  an  Italian  citizen  in  the  United  States,  who  hag  no  known  heir  or  testamentary 
executor  designated  by  him,  the  competent  local  authorities  shall  give  notice  of 

156 


CONSULAR  CASES 

the  fact  to  the  consuls  or  consular  agents  of  the  nation  to  which  the  ''  3ap  a  be- 
longs, to  the  end  that  information  may  be  at  once  transmitted  to  ^e  parties  in- 
terested. 

' '  Art.  17.  The  respective  consuls  general,  consuls,  vice-consuls  and  consular 
agents,  as  likewise  the  consular  chancellors,  secretaries,  clerks  or  attaches,  shall 
enjoy  in  both  countries  all  the  rights,  prerogatives,  immunities  and  privileges 
which  are  or  may  hereafter  be  granted  to  the  officers  of  the  same  grade  of  the 
most  favored  nation." 

This  provision  giving  to  the  Italian  consuls  general  all  the 
rights,  prerogatives,  and  privileges  of  officers  of  the  same  grade  of 
other  more  favored  nations  means  more  favored  in  respect  of  the  par- 
ticular matter  in  regard  to  which  a  question  may  arise,  and  is  not 
to  be  made  applicable  only  in  cases  where  a  treaty,  taken  as  a  whole, 
is  more  favorable.  Now,  upon  examining  the  treaties  of  the  United 
States  with  foreign  nations,  we  find  the  treaty  of  July  27,  1853,  with 
the  Argentine  republic,  and  in  that  this  provision : 

"Art.  9.  If  any  citizen  of  the  two  contracting  parties  shall  die  without  will 
or  testament  in  any  of  the  territories  of  the  other,  the  consul  general  or  consul 
of  the  nation  to  which  the  deceased  belonged,  or  the  representative  of  such  consul 
general  or  consul  in  his  absence,  shall  have  the  right  to  intervene  in  the  posses- 
sion, administration  and  judicial  liquidation  of  the  estate  of  the  deceased,  con- 
formably with  the  laws  of  the  country,  for  the  benefit  of  the  creditors  and  legal 
heirs."  (1122) 

Considering  carefully  the  language  of  this  treaty,  the  Argen- 
tine republic  would  seem  to  be  treated  more  liberally,  and  with  more 
favor,  and  given  greater  specific  rights,  than  the  kingdom  of  Italy 
under  its  treaties.  Therefore  it  follows  that  under  this  * '  most  favored 
nation"  clause  we  must  give  to  the  consul  general  of  Italy  the  same 
powers  and  rights  conferred  upon  the  consul  general  of  the  Argen- 
tine republic.  This  leads  to  the  conclusion  that  not  only  by  inher- 
ent right,  but  by  specific  treaty  provision,  the  consul  general  of  Italy 
is  entitled  to  administer  in  this  case,  and  is  preferred  to  the  persons 
entitled  under  the  state  statutes.  This  administration,  however, 
must  be  had  as  provided  in  the  treaty  of  the  Argentine  republic, 
*  *  conformably  with  the  laws  of  the  country  for  the  benefit  of  creditors 
and  legal  heirs."  While  it  probably  is  true  that  under  inherent 
power,  as  well  as  under  specific  treaty  provisions,  a  consul  general 
could  demand,  sue  for,  and  collect  the  assets  of  countrymen  dying 
within  his  jurisdiction  without  the  aid  of  the  machinery  of  the  sur- 
rogate's court,  nevertheless,  under  article  9  of  the  Italian  consular 
treaty,  above  cited,  he  has  the  right  to  come  into  the  surrogate's 
court  to  defend  his  countrymen;  and,  having  done  so,  he  is  entitled 
to  our  aid  as  contemplated  by  the  treaty. 

157 


CONSULAR  CASES 

We  are  next  brought  to  the  question  of  security.  While  it  is 
policy  to  give  treaties  the  broadest  and  most  liberal  construction,  and 
to  extend  to  foreign  subjects,  through  their  respective  representatives, 
all  the  facilities  accorded  to  citizens,  at  the  same  time  it  cannot  be 
argued  that  the  United  States  intended  to  deprive  any  of  its  citizens 
of  rights  accorded  to  them  under  their  local  laws.  That  is  to  say, 
it  cannot  be  said  that  the  federal  government  intends  to  take  away 
from  citizens  or  resident  creditors  of  a  deceased  alien  the  security 
which  is  provided  for  under  state  laws;  and,  therefore,  the  admin- 
istration to  be  granted  to  the  consul  general  can  only  be  upon  giving 
the  bond  provided  for  by  state  law,  the  penalty,  however,  to  be  double 
the  amoimt  of  the  debts  due  to  resident  creditors,  or  double  the 
amount  of  the  assets,  in  case  the  estate  be  insolvent.  Upon  satisfac- 
tory evidence,  however,  that  the  decedent  here  died  without  debts 
due  resident  creditors,  letters  of  administration  will  issue  without 
the  giving  of  a  bond. 

Letters  of  administration  granted. 

FAWCXrS,  IN  THE  GOODS  OF,  (1884,  Great  Britain) 

Law  Rep.  9  Prob.  Div.  241. 

Eannen,  Probate  Division. 

Where  by  German  law  a  British  consul  is  not  allowed  to  administer  an  oath, 
the  affidavit  may  be  sworn  before  a  German  judge. 

HENRY  FAWCUS,  late  of  Hamburg,  in  Germany,  deceased, 
died  on  the  11th  of  November,  1883,  at  Hamburg  aforesaid.  The 
deceased,  who  was  a  German  subject,  died  domiciled  in  Germany, 
having  made  his  will  whereby  he  disposed  of,  amongst  other  property, 
a  policy  of  assurance  effected  in  the  Commercial  Union  Life  Assur- 
ance Company,  of  Comhill,  London. 

An  English  probate  being  therefore  necessary,  the  ordinary  Eng- 
lish oath  and  affidavit  for  inland  revenue  were  sent  to  the  executors 
(both  of  whom  were  Germans  resident  in  Hamburg)  to  be  sworn 
before  the  British  consul,  but  he  refused  to  administer  the  oaths  on 
the  ground  that  he  had  received  instructions  from  the  British  am- 
bassador in  Germany  not  to  administer  an  oath  to  any  but  British 
subjects. 

The  oath  and  affidavit  were  then  sworn  before  the  judge  of  the 
Hamburg  Probate  Court,  and  signed  by  the  judge  and  clerk  of  the 
court,  and  sealed  with  the  court's  seal,  and  the  signatures  of  the 
judge  and  clerk  were  verified  by  the  British  consul,  who  also  certi- 
fied a«  to  the  seal  of  the  court.  It  having  been  doubted  at  the  regis- 
try whether  the  Q&th  and  affidavit  were  duly  sworn ; 

138 


CONSULAR  CASES 

Aug.  4.  Channell,  moved  the  Court  to  admit  them.  As  the 
consul  is  not  allowed  by  German  law  to  administer  the  oath,  this  is 
in  effect  a  place  where  there  is  no  such  person  (21  &  22  Vict.  c.  95,  s. 
31.)' 

Curia  advisare  vult. 

(242)  Aug.  9.  SIR  J.  HANNEN  (President.)  An  affidavit 
had  been  sworn  before  some  competent  officer  at  Hamburg — that  is  to 
say,  competent  officer  in  the  absence  of  the  British  consul,  and  the 
reason  why  it  was  not  sworn  before  the  British  consul  was  that  the 
German  government  asserts  that  by  the  law  of  Germany  no  judicial 
act,  including  the  swearing  of  an  affidavit,  can  be  done  before  anybody 
but  the  German  authority.  Our  government,  I  believe,  has  acquiesced 
in  that  view,  and  has  given  instructions  to  British  consuls  not  to  ad- 
minister oaths  in  such  matters.  In  these  circumstances  the  ques- 
tion was  whether  the  condition  mentioned  in  the  Act  of  Parliament, 
that  in  the  absence  of  a  British  consul  the  affidavit  might  be  sworn 
before  another  competent  authority  is  fulfilled,  and  I  am  of  the 
opinion  that  it  is.  If  the  consul  were  accidentally  absent  that  af- 
fidavit might  be  sworn — as  it  has  been — but  if  he  is  forbidden  both  by 
the  law  of  the  country  in  which  he  lives  and  by  his  superior,  the 
foreign  office,  to  do  this  act,  it  appears  to  me  that  he  is  not  available, 
and  that  the  affidavit  may  be  sworn  before  the  German  authorities. 
I  therefore  admit  the  affidavit. 

SoKcitors:    Leonard  &  Leonard. 

R.  A.  P. 

FERRERS  V.  BOSEL,  (1821,  U.  S.) 

10  M.  35. 

Martin,  Supreme  Court  of  Louisiana. 

(Extract)  The  only  question  in  the  case  is,  as  to  the  admission 
in  evidence  ©f  notarial  instruments,  executed  at  Bagur,  in  the  kingdom 
of  Spain. 

The  signature  of  Jose  Puig  y  Pui,  the  notary  before  whom  these 
instruments  were  executed,  as  well  as  his  official  capacity,  are  proven 
by  the  signature  and  signos  of  three  notaries  of  the  district;  by  that 
of  the  constitutional  alcade,  at  Bagur,  and  also  by  the  American  con- 
sul at  Barcelona,  who  has  also  certified  that  of  the  alcade. 

^  The  following  are  the  material  parts  of  the  section  referred  to.  In 
cases  where  it  is  necessary  to  obtain  affidavits .  .  .  from  persons  residing  in  for- 
eign parts  out  of  her  majesty's  dominions  the  same  may  be  sworn ...  before  the 
persons  empowered  to  administer  oaths  under  the  act  6  Geo.  4,  c.  87,  or  under  the 
act  18  &  19  Vict.  c.  42.  Provided  that  in  places  where  there  are  no  such  per- 
sons as  are  mentioned  in  the  said  acts,  such  affidavits.  .  .may  be  made ...  before 
any  foreign  local  magistrate  or  other  person  having  authority  to  adminiiter  ao 
oath. 

1^9 


CONSULAR  CASES 

The  authenticity  given  by  Spanish  officers,  to  these  instruments, 
would  give  them  credit  in  the  tribunals  of  Spain ;  and  I  think,  when 
the  signature  and  seal  of  the  American  consul  are  added  to  the  proof 
of  the  hand  writing  of  the  notaries,  they  ought  to  be  received  in  this. 

FERRIE  V.  THE  PUBLIC  ADMINISTRATOR,  (1855,  U.  S.— France) 

3  Bradford 's  Surrogate  Reports  249. 

Bradford,  Surrogate's  Court  of  New  York. 

(264)  (Extract)  5.  That  the  next  kin,  in  case  of  Feme's 
illegitimacy,  are  entitled,  is  therefore  clear,  and  although  from  being 
non-resident  aliens,  they  are  disqualified  from  administering,  that 
disqualification  may  be  removed  by  a  change  of  residence  to  New 
York,  and  in  default  of  their  administering,  the  public  administrator 
in  this  county  is  entitled  to  letters  before  creditors  and  strangers. 
Their  alienage,  however  it  affects  the  mere  suggestion  of  administra- 
tion, affords  no  reason  for  disregarding  their  claims  as  to  the  prop- 
erty. In  that  respect  their  standing  here  is  not  a  matter  of  comity, 
but  of  strict  right,  and  there  is  no  tribunal  in  any  civilized  country, 
I  hope,  where  their  rights  would  not  be  respected.  I  must  therefore 
remain  of  the  same  opinion,  as  expressed  on  the  former  hearing  of 
this  case,  and  direct  a  commission  to  be  issued  as  already  determined. 
That  commission  must  issue,  however,  in  the  ordinary  form,  and  should 
be  under  the  supervision  of  a  person  appointed  by  this  court.  The 
commission  rogatoire,  invoking  the  aid  of  foreign  tribunals,  in  the 
form  suggested  by  the  consul  for  the  French  claimants,  presents  no 
advantages,  and  is  exposed  to  the  objection  that  it  removes  the  in- 
vestigation from  the  control  of  this  court,  and  from  the  operation 
of  (265)  those  rules  of  evidence  which  prevail  in  American  tribunals. 
The  objection  made  to  the  right  of  the  French  consul  to  be 
heard  in  this  case  seems  to  me  not  well  founded.  Our  treaty  with 
France  .secures  to  the  consuls  of  both  nations  the  right  to  apply  "to 
the  authorities  of  their  respective  governments,  whether  federal  or 
local,  judicial  or  executive". .  ."for  the  purpose  of  protecting,  inform- 
ally, the  rights  and  interests  of  their  countrymen,  especially  in  cases 
of  absence."  This  treaty  is  a  formal  recognition  of  a  practice  estab- 
lished by  national  comity.  Neither  the  treaty  nor  the  usage  gives  the 
consul  any  status  in  the  court  as  a  party.  He  appears  only  "inform- 
ally," having  a  right  to  be  heard  not  as  a  party,  but  as  the  national 
agent  of  parties  supposed  to  be  interested. 

FLAD  OYEN,  THE,  fl799.  Great  Britain) 
1  Rob.  C.  135. 

iSitr  William  Scott,  High  Court  of  Admiralty. 

160 


CONSULAR  CASES 

[Consular  condemnations  of  prizes  in  neutral  ports  are  not 
valid. — Ed.] 

FLYNN  V.  STOUGHTON,  (1848,  U.  S.) 

5  Barb.  115. 

Edmonds,  Supreme  Court  New  York. 

EDMONDS,  J.  The  defendant,  after  having  pleaded  to  the 
merits,  and  after  a  verdict  has  been  rendered  against  him,  seeks  to 
avoid  the  jurisdiction  of  this  court  on  a  special  motion  and  on  a 
suggestion  contained  in  affidavits,  which  do  not  form  any  part  of  the 
record.  In  Davis  v.  Packard,  (6  Wend.  333,)  our  court  of  errors 
say,  if  the  court  has  general  jurisdiction  over  the  subject  matter, 
and  the  defendant  has  some  privilege  which  exempts  him  from  the 
jurisdiction,  he  may  waive  that  privilege  if  he  chooses  to  do  so,  and  in 
a  superior  court  of  general  juris-  (116)  diction,  if  he  neglects  to 
object  and  show  to  the  court  his  particular  exemption,  by  way  of 
a  plea  in  abatement  or  otherwise,  before  he  has  answered  as  to  the 
merits,  he  will  forever  be  precluded.  By  pleading  in  chief,  and 
thereby  calling  for  a  decision  of  the  cause  on  the  merits,  the  party  ad- 
mits the  jurisdiction  of  the  court  to  make  such  decision.  And  in  the 
same  case  (10  Wend.  50,)  that  court  again  affirm  that  doctrine  and 
insist  that  if  the  privilege  of  a  public  minister  is  that  of  his  sovereign 
and  therefore  cannot  be  waived,  it  is  confined  to  ambassadors  or 
other  diplomatic  agents,  and  does  not  apply  to  consuls  or  com- 
mercial agents. 

The  supreme  court  of  the  United  States,  in  revising  the  judg- 
ment of  the  court  of  errors  in  that  case,  did  no  more  than  assert  that 
jurisdiction  over  foreign  consuls  was  vested  solely  in  the  federal 
judiciarj'  by  the  act  of  congress.  (7  Peters,  276.  8  Id.  324.)  That 
court  does  not  touch  the  principle  established  in  our  state  tribunal 
of  last  resort,  to  which  I  have  already  referred.  It  is  therefore  left 
in  full  force  for  my  governance.  Consequently  I  must  hold  that  the 
privilege  of  a  foreign  consul  to  be  exempt  from  the  jurisdiction  of 
state  tribunals,  must  be  asserted  in  due  time,  and  may  be  waived 
by  a  plea  to  the  merits.  The  motion  to  quash  the  proceedings  must 
therefore  be  denied;  but  the  inquest  must  be  opened,  because  it  was 
irregular  for  the  plaintiff  to  put  his  cause  on  the  calendar  after  the 
term  had  begim,  without  notice  to  his  adversary.  The  defendant 
searched  the  calendar  after  the  sittings  began,  and  not  finding  this 
cause  upon  it  had  a  right  to  suppose  it  would  not  be  called  on.  To 
put  it  upon  the  calendar  after  that,  and  proceed  to  judgment  without 

161 


CONSULAR  CASES 

notice  to  him,  was  an  irregularity  on  the  part  of  the  plaintiff  for  which 
the  verdict  must  be  set  aside. 

rOEL  V.  THE  SALOMONI,  see  The  Solomoni. 

FOSTER  V.  DAVIS,  (1822,  U.  S.— Italy) 

1  Litt.  71. 

Per  Curiam,  Court  of  Appeals,  Kentucky. 

1.  Where  a  man  enters  into  a  covenant  to  transact  buBiness  in  a  foreign 
country,  a  notarial  certificate  of  his  being  a  citizen  of  the  United  Statei,  &e. 
Buch  as  is  usually  obtained  by  persons  going  abroad,  is  not  evidence  for  him  of 
his  having  made  preparations  for  leaving  the  United  States.     1. 

2.  A  passport,  made  out  by  a  consul  of  the  United  States,  residing  in  a 
foreign  country,  permitting  such  person  to  return  from  that  country  to  the  United 
States,  iB  not  evidence  that  he  has  been  in  such  foreign  country.     1. 

3.  Facts  of  the  above  character  are  completely  susceptible  of  proof  by  wit- 
nesses; and  as  a  consul  is  not  a  judicial  oflScer,  there  is  no  reason  for  substituting 
his  certificate  in  lieu  of  depositions,  for  the  proof  of  them.     2. 

Opinion  of  the  Court:  This  was  an  action  of  covenant,  upon 
articles  of  agreement  between  the  plaintiff  and  the  defendant,  where- 
by, after  reciting  that  James  Schee,  the  American  consul  to  Genoa  in 
Italy,  had  undertaken  to  dispose  of  the  defendant's  patent  Hemp 
and  Flax  Spinning  Machine  right,  to  certain  8ta,tes  and  territories  in 
Europe,  it  was  stipulated  on  the  part  of  the  plaintiff,  that  he  would 
go  with  the  said  Schee,  and  conduct  the  business  of  (72)  spinning  and 
exhibiting  the  said  machine;  and  the  defendant,  on  his  part,  agreed, 
in  consequence  of  the  above  services  rendered  by  the  plaintiff,  to  pay 
his  passage  and  expenses  going  and  returning  to  Kentucky,  and  pay 
him  at  the  rate  of  thirty-three  and  a  third  dollars  per  month,  while 
he  might  be  employed  in  such  services,  and  while  he  was  going  and 
returning  from  Philadelphia,  until  he  returns  to  Kentucky,  except 
what  time  he  should  choose  to  tarry  on  his  way,  on  his  own  account. 
The  plaintiff,  after  setting  forth  the  agreement  in  his  declaration, 
alleges  a  performance  of  the  services  undertaken  by  him  to  be  per- 
formed, and  assigns  as  a  breech  of  covenant  on  the  part  of  the  de- 
fendant, hi.s  failure  to  pay  the  plaintiff's  passage  and  expenses,  and 
the  price  stipulated  for  his  services.  The  defendant  filed  two  pleas, 
one  of  which  was  held  bad  on  demurrer;  but  as  the  assignment  of 
error  does  not  question  the  correctness  of  the  decision  of  the  court 
on  the  demurrer,  the  plea  need  not  be  recited.  By  his  other  plea,  the 
defendant  denied  that  the  plaintiff  had  performed  the  services  by 
him  undertaken  to  be  performed ;  and  to  that  plea  the  plaintiff  joined 
issue  to  the  contrary.    On  the  trial  of  the  issue,  the  plaintiff  offered  to 

162 


CONSULAR  CASES 

read  in  evidence  a  paper  under  the  seal  and  signature  of  a  notary 
public  at  Philadelphia,  stating  that  the  plaintiff  was  a  native  citizen 
of  the  United  States  of  America,  and  requesting  all  governments, 
princes,  potentates  and  powers,  to  suffer  him  to  pass  without  moles- 
tation, etc.  To  the  reading  of  this  paper,  the  defendant  objected; 
but  the  court  overruled  the  objection,  and  suffered  it  to  be  read,  to 
show  that  the  plaintiff  had  taken  the  preparatory  steps  for  leaving 
the  United  States.  The  plaintiff  then  offered  in  evidence  a  paper 
signed  by  James  Schee,  the  consul  of  the  United  States  at  (Jenoa, 
with  the  consular  seal  thereto  attached,  and  written  in  a  foreign 
language.  To  the  admission  of  this  paper  as  evidence,  the  defend- 
ant also  objected ;  but  the  court  overruled  the  objection,  and  permitted 
it  to  be  used  without  being  read;  for  there  was  no  person  in  court 
who  could  translate  it  accurately,  though  the  court  understood  its 
purport,  sufficiently  to  know  that  it  was  a  passport  from  our  consul 
at  Genoa,  to  the  plaintiff,  to  return  to  the  United  States,  and  so  ex- 
plained it  to  the  jury,  and  (73)  directed  the  jury  that  the  paper  was 
only  to  be  evidence  of  the  plaintiff's  having  been  at  Genoa,  and  the 
time  of  his  residence  there,  and  not  for  any  other  purpose.  To  the 
opinions  of  the  court,  in  admitting  those  papers  as  evidence,  the  de- 
fendant excepted ;  and  a  verdict  and  judgment  having  been  rendered 
against  him,  he  has  appealed  to  this  court. 

1.  We  cannot  accord  with  the  circuit  court  in  the  propriety  of 
admitting  either  of  those  papers  as  evidence.  They  are  both  pretty 
much  of  the  same  character,  and  being  liable  to  like  objections,  may 
well  be  considered  together.  They,  no  doubt,  according  to  the  usages 
of  nations,  were  sufficient  to  entitle  the  bearer  to  that  courtesy  and 
respect  which  are  due  to  a  citizen  of  the  United  States  from  foreign 
governments,  through  whose  states  or  territories  he  might  pass.  It 
was  for  that  purpose  alone  they  were  given,  and  for  no  other  purpose 
can  they  be  legitimately  used.  They  certainly  cannot,  we  think, 
be  used  as  evidence  in  a  court  of  justice,  for  the  purpose  of  proving 
facts,  of  the  character  they  were  admitted  to  prove  in  this  case. 

2.  These  facts,  from  their  nature,  were  susceptible  of  being  estab- 
lished by  the  testimony  of  witnesses,  upon  oath;  and  it  is  a  settled 
rule,  that  for  the  establishment  of  facts  of  this  sort,  the  sanction  of 
an  oath  is  indispensable;  and,  of  course,  the  ex  parte  statement  or 
certificate  of  any  one,  not  upon  oath,  whatever  may  be  his  character 
or  station,  cannot  be  admitted  as  evidence  of  the  truth  of  such  facts. 
A  consul,  by  the  law  of  nations,  is,  no  doubt,  possessed  of  high  and  ex- 
tensive powers;  but  he  is  not,  properly  speaking,  a  judicial  officer; 
and  it  is  accordingly  held,  that  his  certificate  is  not  only  not  entitled  to 

163 


CONSULAR  CASES 

the  character  of  a  judgment,  but  that  it  ought  not  to  be  admitted  as 
evidence  of  the  fact  therein  stated.— Phillips'  E  v.  287,  301. 

The  judgment  must  be  reversed  with  costs,  and  the  cause  be  re- 
manded, for  new  proceedings  to  be  had,  not  inconsistent  with  the  fore- 
going opinion. 

FKANgOIS  FAREZ,  IN  EE,  see  Farez,  in  re  FranQois. 

FEANZ  AM)  ELIZE,  THE,  (1861,  Great  Britain) 

5  L.  T.  290;   1  Lush.  377. 

Dr.  Lushington,  High  Court  of  Admiralty. 

(Extract)  But  when  a  foreign  seaman  sues  in  this  court  for 
his  wages,  if  the  consul  from  his  country  objects  to  the  proceedings, 
the  court  should  have  immediate  notice  of  that  fact,  as  usually  it  would 
not  be  disposed  any  longer  to  entertain  the  suit. 

FEOMENT  V.  DTJCLOS,  (1887,  U.  S.) 
30  Fed.  Rep.  385. 
Brown,  District  Court. 

(Syllabus)  The  act  of  congress  of  February  18,  1875,  which  amends  Eev. 
St.  U.  S.  §  711,  by  repealing  the  previous  express  exclusion  of  the  state  courts 
ai  to  jurisdiction  over  suits  against  consuls,  does  not  diminish  the  jurisdiction  of 
the  federal  courts  over  the  same  actions. 

[Prior  to  the  act  of  1875.  .  .this  jurisdiction  embraced  all  Buits  to  which  the 
consul  or  the  vice-consul  was  a  necessary  co-defendant.] 

FEY  V.  COOK,  (1876,  U.  S.— Great  Britain) 
14  Fed.  Rep.  424. 

Billings,  Di.strict  Court. 

(Extract)  The  representative  of  that  country  asks  the  court 
not  to  intervene. 

[Consul  protested  against  the  courts  taking  jurisdiction  in  a 
libel  for  an  offense  committed  on  the  high  seas,  and  court  refused  to 
take  jurisdiction. — Ed.] 

GAEDNEE  v.  BIBBINS,  (1833,  U.  S.) 
Blatchf.  &  H.  :;r,n;  Fed.  Cases  5,222. 
Belts,  District  Court. 

[Master  called  upon  consul  and  secured  soldiers  to  queU  what  he 
declared  to  be  a  mutiny.  The  bbellant  was  awarded  damages  from 
the  master  for  improper  imprisonment. — Ed.] 

164 


CONSULAR  CASES 
GENERAL  McPHERSON,  THE,  (1900,  U.  S.— Germany) 

100  Fed.  Rep.  860. 

Hanford,  District  Court. 

(Extract)  [Article  8  of  treaty  with  Germany]  does  not  con- 
stitute a  German  consul  administrator  of  the  estate  of  a  deceased 
person.  On  the  contrary,  it  only  authorizes  German  consuls  to  act> 
as  legal  representatives  of  the  German  emperor's  subjects.  Now  Mr. 
Schultz  ceased  to  be  a  subject  of  the  emperor  when  he  departed  from 
this  mundane  sphere,  and  he  has  no  rights  for  which  the  German 
consul  need  have  a  care,  for  his  rights  were  terminated  with  his 
death.  •*••♦•• 

The  case  will  be  dismissed  as  to  all  the  parties  above  mention- 
ed, but,  if  prompt  application  is  made,  leave  will  be  granted  to  the 
German  consul  to  amend  his  pleading,  and  introduce  further  proof 
to  identify  the  heirs  of  Charles  Schultz. 

GERNON  V.  COCHRAN,  (1804,  U.  S.) 

2  PhiUim.  (2d  Ed.)  270;  Bee  209,  Fed.  Cases  5,368. 

Bee,  District  Court. 

(Extract)  By  the  French  and  Spanish  consuls,  who  are  gen- 
eral agents  for  the  subjects  of  their  respective  countries,  not  otherwise 
represented     #     *     *     * 

[In  this  case  the  French  and  Spanish  consuls  could  not  agree 
about  the  validity  of  a  capture  and  referred  the  case  to  their  minis- 
ter at  Philadelphia — the  ship  to  be  sold  and  the  proceeds  awarded 
by  the  minister. 

The  court  held  that  the  letter  of  the  French  consul-general  of 
France  at  Philadelphia  to  the  French  consul  at  Charleston  saying 
that  the  capture  had  been  decided  to  be  illegal  by  the  minister,  was 
conclusive. — Ed.  ] 

GITTINGS  V.  CRAWFORD,  (1838,  U.  S.) 
Taney.  1 ;  Fed.  Cases  5,465. 
Taney,  Circuit  Court. 

In  the  second  section  of  the  3d  article  of  the  constitution  of  the  United 
States,  it  is  declared  that  "in  all  cases  affecting  ambassadors,  other  public  min- 
isters, and  consuls,  and  those  in  which  a  state  shall  be  a  party,  the  supreme  court 
shall  have  original  jurisdiction ; ' '  held,  that  this  does  not  conflict  with  and  ren- 
der unconstitutional  the  act  of  congress  passed  24th  September  1789,  sect.  9, 
giving  jurisdiction  to  the  district  court  of  the  United  States,  in  civil  cases,  against 
consuls  and  vice-consuls. 

The  grant  of  jurisdiction  over  a  certain  subject-matter  to  one  court,  does  not, 
of  itself,  imply  that  that  jurisdiction  is  to  be  exclusive. 

165 


CONSULAR  CASES 

A  consul  ii  not  entitled,  by  the  laws  of  nations,  to  the  immunities  and 
privileges  of  an  ambassador  or  public  minister.  He  is  liable  to  civil  suits,  like 
any  other  individual,  in  the  tribunals  of  the  country  in  which  he  resides. 

Circuit  Court,  April  term,  1838.     Error  to  the  District  Court. 

TANEY,  C.  J.  The  suit  in  this  case  was  brought  by  John  S. 
Gittings  against  John  Crawford,  upon  a  promissorj'-  note  (2)  made  by 
Crawford  to  Gittings,  for  $980,  dated  December  27,  1834,  and  pay- 
able twenty  days  after  date.  The  writ  stated  the  plaintiff  to  be  a 
citizen  of  the  state  of  Maryland,  and  the  defendant  to  be  the  consul 
of  his  Britannic  majesty.  The  defendant  appeared  to  the  suit,  and 
moved  to  quash  the  writ,  on  the  ground  that  the  district  court  had 
no  jurisdiction  over  the  case ;  the  court  below  sustained  the 
motion,  quashed  the  writ,  and  gave  judgment  in  favor  of  the  defend- 
ant for  costs.  The  case  has  been  brought  here  by  the  plaintiff,  by 
writ  of  error,  and  the  question  to  be  now  decided  by  this  court  is, 
whether  the  act  of  congress  of  September  24,  1879,  §  9,  giving  juris- 
diction to  the  district  court  of  the  United  States,  in  cases  of  this 
description,  against  consuls  and  vice-consuls,  is  constitutional  or  not. 

The  clause  of  the  constitution  of  the  United  States  which  is 
supposed  to  be  violated  by  this  law,  is  that  part  of  the  2d  section 
of  the  3d  article,  which  declares  that,  **in  all  cases  affecting  ambassa- 
dors, other  public  ministers  and  consuls,  and  those  in  which  a  state 
shall  be  a  party  ,  the  supreme  court  shall  have  original  jurisdiction." 
It  is  insisted,  that  the  grant  of  original  jurisdiction  in  these  cases  to 
the  supreme  court,  means  exclusive  original  jurisdiction,  and  that  it 
is  not  in  the  power  of  congress  to  confer  original  jurisdiction,  in  the 
cases  there  mentioned,  upon  any  other  court. 

The  question  thus  presented  for  the  decision  of  the  circuit  court, 
is  certainly  a  difficult  and  embarrassed  one.  Different  opinions  have 
been  expressed  upon  it  by  eminent  men  in  high  judicial  stations; 
and  the  difficulties  which  arise  from  the  words  of  the  constitution 
itself  have  been  greatly  multiplied  by  the  different  constructions, 
which,  at  different  time,  have  been  given  to  the  clause  in  question. 

The  earliest  case  upon  the  subject  is  in  2  Dall.  297,  United  States 
V.  Ravara,  in  the  year  1793.  That  was  an  indictment  in  the  circuit 
court  against  a  consul,  for  a  misdemeanor;  and  the  consul  for  the 
defendant  moved  to  quash  the  indict-  (3)  ment,  upon  the  ground 
that  the  clause  of  the  constitution  above  quoted  vested  exclusive  juris- 
diction in  such  cases  in  the  supreme  court,  and  that  the  act  of  1789, 
which  conferred  original  jurisdiction  on  the  circuit  court,  was  un- 
constitutional and  void.  A  majority  of  the  court,  however,  overruled 
the  objection,  and  decided  that  the  grant  of  original  jurisdiction  to 

166 


CONSULAR  CASES 

the  supreme  court  was  not  exclusive ;  that  congress  might  vest  orig- 
inal jurisdiction,  in  the  cases  there  enumerated,  in  other  courts,  and 
that  the  act  of  1789,  conferring  jurisdiction  upon  the  circuit  court, 
was  constitutional  and  valid.  At  a  subsequent  term  of  the  circuit 
court,  in  1794,  the  case  came  up  for  trial.  Chief  Justice  Jay  presiding, 
and  the  court  charged  that  the  defendant  was  not  privileged  from 
prosecution  in  virtue  of  his  consular  appointment,  and  the  jury,  un- 
der that  charge,  found  him  guilty. 

It  appears,  then,  that  in  the  circuit  court,  upon  two  different 
occasions,  it  was  held,  that  the  jurisdiction  conferred  by  the  constitu- 
tion upon  the  supreme  court,  in  cases  affecting  consuls,  was  not  ex- 
clusive. And  these  decisions  were  made  by  eminent  and  distin- 
guished judges,  some  of  whom  had  been  members  of  the  Convention 
which  framed  the  constitution,  and  all  of  whom  had  taken  prominent 
and  leading  parts  in  the  discussions  which  preceded  its  adoption  by 
the  people.  These  discussions  have  all  the  force  and  authority  which 
courts  have  uniformly  given  to  the  contemporaneous  construction  of 
a  law. 

But  the  authority  of  the  decisions  in  the  circuit  court  was  shaken 
by  the  case  of  Marbury  v.  Madison,  1  Cranch  137,  where  the  ques- 
tion as  to  the  construction  of  this  clause  of  the  constitution  came,  for 
the  first  time,  before  the  supreme  court.  In  the  opinion  delivered  in 
that  case,  it  was  said,  in  general  terms,  by  the  court,  that  the  original 
jurisdiction  conferred  on  the  supreme  court  was  exclusive. 

In  Cohens  v.  State  of  Virginia,  6  "Wheat.  378,  the  construction  of 
this  part  of  the  constitution  again  came  under  consideration.  And 
although  the  court  reviewed  and  (4)  recalled  some  of  the  dicta  in 
the  case  of  Marbury  v.  Madison,  yet  what  had  been  there  said  on  the 
point  now  in  question,  was  not  disturbed,  and  the  court  again  strong- 
ly intimated  that  the  clause  granting  original  jurisdiction  to  the 
supreme  court  was  so  far  exclusive,  that  congress  could  not  grant 
original  jurisdiction,  in  the  cases  enumerated,  to  an  inferior  tribunal 
of  the  United  States. 

And  in  Osbom  v.  United  States  Bank,  9  Wheat.  820,  the  chief 
justice  distinctly  expressed  the  opinion  that  the  original  jurisdiction 
granted  to  the  supreme  court,  is  exclusive,  and  cannot  be  given  by 
congress  to  any  other  tribunal. 

It  is  worthy  of  remark,  that  in  two  of  these  three  cases  in  the 
supreme  court,  the  question  was  upon  the  jurisdictions  of  that  court, 
and  not  upon  the  jurisdiction  of  an  inferior  tribunal  of  the  United 
States.  And  in  the  last  of  them,  the  question  was  upon  the  juris- 
diction of  the  courts  of  the  United  States,  as  contradistinguished 
from  the  state  courts;  and  the  further  question  whether  the  case  be- 

167 


CONSULAR  CASES 

fore  them  arose  under  a  law  of  the  United  States.  In  neither  of  these 
three,  was  the  point  directly  presented,  whether  congress  could  grant 
original  jurisdiction  to  an  inferior  court,  in  the  cases  enumerated  in 
the  clause  now  in  controversy.  All  therefore  that  was  said  by  the 
court  in  these  cases,  on  that  question,  was  by  way  of  argument  and 
illustration,  and  not  necessarily  involved  in  the  decision  of  the  cases 
then  before  the  court.  And  we  are  warned  by  the  chief  justice,  in 
the  opinion  delivered  by  him  in  Cohens  v.  Virginia,  that  principles 
thus  stated  are  not  to  be  regarded  as  binding  adjudications;  and 
some  of  the  principles  strongly  put  forth  by  him  in  the  case  of  Mar- 
bury  V.  Madison,  are  repudiated  and  overruled  in  Cohens  v.  Virginia. 

Yet,  after  these  repeated  declarations  of  the  opinion  of  the 
supreme  court,  so  explicitly  reiterated  in  the  case  of  Osbom  v.  United 
States  Bank,  I  should  not  have  felt  myself  at  liberty  to  adopt  a  dif- 
ferent construction  of  the  article  in  question,  if  the  action  of  the 
supreme  court  on  this  subject  had  stopped  with  the  last  mentioned 
case ;  (5)  for  the  controversy  involves  no  right  reserved  to  the  states 
or  secured  to  individual  citizens.  It  is  a  question  merely  of  the  dis- 
tribution of  power  among  the  courts  of  the  United  States,  and  when 
the  supreme  court  had  so  repeatedly  expressed  its  opinion  that  that 
court,  under  the  constitution,  had  exclusive  original  jurisdiction 
over  the  subject-matters  enumerated  in  the  clause  now  under  con- 
sideration, it  would  hardly  have  been  proper  or  decorous  in  the  cir- 
cuit court  to  disregard  those  opinions,  although  they  were  expressed 
when  the  point  in  controversy  was  not  directly  before  it. 

But  the  action  of  the  supreme  court  did  not  stop  with  the  cases 
above  cited ;  the  point  in  dispute  was  brought  directly  before  the  court 
in  United  States  v.  Ortega,  11  Wheat.  467.  That  case  came  before  the 
supreme  court  upon  a  certificate  of  division  of  the  judges  of  the 
circuit  court,  and  the  points  presented  by  the  certificates  were — 
1.  Whether  it  was  a  case  affecting  an  ambassador  or  public  minis- 
ter; and —  2.  If  it  were  such  a  case,  was  the  act  of  1789,  giving 
original  jurisdiction  to  the  circuit  court,  constitutional  or  not?  The 
court  said  it  was  not  necessary  to  decide  the  second  point,  because 
they  were  of  opinion  that  it  was  not  a  case  affecting  an  ambassa- 
dor or  public  minister.  It  can  hardly  be  supposed,  that  the  supreme 
court  would  have  refused  to  express  an  opinion  on  the  second  point, 
if  they  had  regarded  the  question  as  settled  by  the  previous  decisions 
of  that  court.  The  manner  in  Avhich  they  treated  it,  when  thus  di- 
rectly brought  into  discussion,  shows  that  in  their  opinion,  it  was  still 
an  open  one,  and  had  not  been  concluded  by  anything  said  in  the 
different  opinions  of  the  court  to  which  I  have  before  referred;  and 

168 


CONSULAR  CASES 

the  reporter  in  a  note  to  this  case  expressly  states  that  the  point  in 
question  had  not  been  decided  by  the  supreme  court. 

But  in  another  and  very  late  case  the  court  have,  in  my  judg- 
ment, distinctly  affirmed  the  constitutionality  of  the  act  of  1789,  on 
the  very  point  in  controversy.  In  the  case  of  Davis  v.  Packard,  7 
Peters  281,  the  question  was  brought  (6)  before  the  court  by  writ  of 
error  from  the  court  of  errors  of  New  York,  which  court  was  supposed 
to  have  decided  that  a  state  court  had  jurisdiction  in  cases  where  a  con- 
sul was  concerned.  It  turned  out  afterwards,  that  the  court  had  not 
so  decided ;  but  the  supreme  court,  when  the  case  came  before  them, 
interpreted  the  record  otherwise,  and,  acting  upon  that  interpreta- 
tion, reviewed  the  judgment  of  the  court  of  errors  of  New  York. 
Judge  Thompson,  in  delivering  the  judgment  of  the  supreme  court, 
says:  "As  an  abstract  question,  it  is  difficult  to  imderstand,  on 
what  ground  a  state  court  can  claim  jurisdiction  of  civil  suits  against 
foreign  consuls.  By  the  constitution,  the  judicial  power  of  the 
United  States  extends  to  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls;  and  the  judiciary  act  of  1789,  sect.  9,  (1  Stat. 
76)  gives  to  the  district  courts  of  the  United  States,  exclusively  of 
the  courts  of  several  states,  jurisdiction  of  all  suits  against  consuls 
and  vice-consuls,  except  for  certain  offenses  mentioned  in  the  act." 
This  language  used  by  the  court,  with  the  point  directly  before  them, 
can  only  be  understood  as  an  affirmance  of  the  constitutionality  of  the 
act  of  1789 ;  for  the  exclusion  of  the  state  courts  is  not  put  upon  the 
ground,  that  they  were  impliedly  excluded  by  the  grant  of  original 
jurisdiction  in  such  cases  to  the  supreme  court;  but  the  decision  is 
placed  on  the  grant  of  power  to  the  courts  of  the  United  States  gen- 
erally,  and  on  the  act  of  1789,  which  conferred  the  jurisdiction  on  the 
district  courts,  and  excluded  the  state  courts.  No  notice  is  taken,  in 
that  opinion,  of  the  clause  conferring  original  jurisdiction  on  the 
supreme  court.  The  exclusion  of  the  state  courts  is  not  derived  from 
it,  but  from  the  act  of  1789 ;  so,  of  course,  that  act  was  deemed  con- 
stitutional. 

This  decision  is  in  conformity  with  the  contemporaneous  con- 
struction of  the  constitution,  given  by  the  circuit  court  in  the  case  of 
the  United  States  v.  Ravara,  before  referred  to.  And  although  the 
authority  of  that  case  was  much  doubted,  after  the  opinions  delivered 
in  Marbury  v.  Madi-  (7)  son,  Cohens  v.  Virginia,  and  Osborn  v. 
United  States  Bank,  and  more  especially  on  account  of  the  high  and 
just  reputation  of  the  eminent  judge  by  whom  those  opinions  were 
delivered,  yet  this  vexed  question  ought,  in  my  judgment,  to  be  re- 
garded as  now  settled  by  the  case  of  Davis  v.  Packard. 

It  is  worthy  of  remark,  also,  that  the  elementary  writers,  gen- 

169 


CONSULAR  CASES 

erally,  seem  to  have  regarded  the  act  of  1789  as  constitutional,  and 
to  have  relied  on  the  case  of  the  United  States  v.  Ravara:  vide  11 
\Vheat.  473.  (note);  Rawle  on  the  const.  221,  222;  Conkling  160 ^ 
Sergeant  17,  18. 

Independently,  however,  of  any  judicial  authority,  the  con- 
clusions of  my  own  mind  must  have  been  very  clear  and  free  from 
doubt,  before  I  should  have  felt  myself  justified  in  pronouncing  an 
act  of  congress  passed  in  1789  a  violation  of  the  constitution.  It 
was  the  first  congress  that  met  under  the  constitution,  and  in  it  were 
many  men  who  had  taken  a  prominent  and  leading  part  in  framing 
and  supporting  that  instrument,  and  who  certainly  well  understood 
the  meaning  of  the  words  they  used.  The  fact  that  the  law  in  ques- 
tion was  passed  by  such  a  body,  is  strong  evidence  that  the  words 
of  the  constitution  were  not  intended  to  forbid  its  passage. 

Nor  am  I  by  any  means  satisfied  that  the  words  used  require  a 
different  construction  from  that  given  to  them  by  the  act  of  1789. 
There  are  no  express  words  of  exclusion  in  the  clause  which  confers 
original  jurisdiction,  in  the  cases  mentioned,  upon  the  supreme  court. 
"Why  should  they  be  implied?  They  are  clearly  not  implied  in  re- 
lation to  the  state  courts,  in  the  clause  immediately  preceding,  which 
gives  judicial  power  in  certain  cases  to  the  courts  of  the  United 
States;  for  there  are  some  subjects  there  enumerated  from  which  it 
never  could  have  been  designed  to  exclude  altogether  the  state  auth- 
orities. For  example,  the  constitution  of  the  United  States  is  the 
supreme  law  in  the  several  states,  and  the  courts  of  the  states  are 
bound  to  respect  and  interpret  it,  and  to  declare  any  state  law  null 
and  void  which  (8)  violates  its  provisions.  Again,  the  laws  of  con- 
gress, when  passed  in  the  exercise  of  its  constitutional  powers,  are 
obligatory  upon  the  state  courts,  and  must  be  construed  by  the  courts, 
and  obeyed  by  them,  whenever  they  come  in  conflict  with  the  laws  of 
the  state.  It  is  true,  that  the  decisions  of  the  state  courts  must  be 
subordinate  to,  and  subject  to  the  revision  of,  the  supreme  court  of 
the  United  States,  to  whom  the  ultimate  decision  of  such  questions 
belongs;  yet,  the  state  courts  are  not,  and  cannot,  from  the  nature  of 
our  institutions,  be  excluded  from  all  jurisdiction  in  such  matters, 
and  the  grant  of  power  to  the  courts  of  the  United  States  has  never 
been  held  to  exclude  them.  If  the  grant  of  jurisdiction  to  the  courts 
of  the  United  States,  generally,  is  not,  by  implication,  the  exclusion 
of  all  other  courts,  in  the  cases  enumerated  in  that  grant  of  power, 
why  should  thp  grant  of  original  jurisdiction  to  the  supreme  court  in 
certain  cases,  in  the  very  same  section,  and  by  the  next  succeeding 
clause,  be  held  to  imply  such  exclusion?  The  original  jurisdiction 
conferred  on  the  supreme  court  is  not  inconsistent  with  the  exercise 

170 


CONSULAR  CASES 

of  original  jurisdiction  on  the  same  subjects  by  the  inferior  courts 
of  the  United  States,  and  there  is  no  necessity,  therefore,  for  implying 
an  intention  to  exclude  them. 

Indeed,  if  the  grant  of  original  jurisdiction,  in  the  cases  men- 
tioned, implied  exclusion  of  jurisdiction  on  those  subjects,  the  ex- 
clusion would  seem  most  naturally  to  apply  to  the  appellate  juris- 
diction of  the  court  itself,  and  to  prohibit  it  from  the  exercise  of  the 
latter  in  the  cases  where  the  former  was  given.  The  subject-matter 
of  this  part  of  the  section  is  the  jurisdiction  of  the  supreme  court, 
and  it  is  divided  into  appellate  and  original.  The  cases  are  enumer- 
ated in  which  it  shall  have  original  jurisdiction;  and  appellate  is 
given  to  it  in  others.  Now  it  might  very  well  be  supposed,  that  in 
thus  classing  the  subjects  upon  which  it  should  have  original,  and 
upon  which  it  should  have  appellate  jurisdiction,  the  framers  of  the 
constitution  meant  to  limit  its  jurisdiction  in  the  manner  in  which 
it  is  (9)  there  divided,  and  to  exclude  it  from  original  jurisdiction 
where  appellate  was  given,  and  to  exclude  it  from  appellate  where 
original  was  given ;  and  this  was  supposed  to  be  the  construction  given 
to  it  in  the  case  of  Marbury  v.  Madison,  by  the  learned  judge  who  de- 
livered the  opinion.  But  when  the  subject  was  further  discussed 
and  considered  in  the  case  of  Cohens  v  State  of  Virginia,  it  became 
manifest,  that  such  a  construction  could  not  be  sustained,  without  de- 
priving the  supreme  court  of  some  of  its  most  important  and  neces- 
sary powers ;  powers  which,  from  the  whole  frame  of  the  instrument, 
it  was  evidently  intended  that  the  court  should  exercise;  and  which, 
although  classed  in  its  original  jurisdiction,  it  could  exercise  only  in 
an  appellate  form,  when  the  question  arose  in  a  suit  in  a  state  court. 
The  language  used  in  Marbury  v.  Madison  was  therefore  qualified  and 
explained,  and  it  was  decided,  that  the  grant  of  original  jurisdiction, 
in  the  cases  enumerated,  to  the  supreme  court,  did  not  exclude  from 
appellate  jurisdiction  over  the  same  subjects.  And  this  latter  con- 
struction is  now  the  established  law  of  the  country.  If  the  arrange- 
ment and  classification  of  the  subjects  of  jurisdiction  into  appellate 
and  original,  as  respects  the  supreme  court,  do  not  exclude  that 
tribunal  from  appellate  power  in  the  cases  where  original  jurisdiction 
is  granted,  can  it  be  right,  from  the  same  clause,  to  imply  words  of 
exclusion  as  respects  other  courts  whose  jurisdiction  is  not  there 
limited  or  prescribed,  but  left  for  the  future  regulation  of  congress? 
The  true  rule  in  this  case  is,  I  think,  the  rule  which  is  constantly 
applied  to  ordinary  acts  of  legislation,  in  which  the  grant  of  jurisdic- 
tion over  a  certain  subject-matter  to  one  court,  does  not,  of  itself,  im- 
ply that  that  jurisdiction  is  to  be  exclusive.  In  the  clause  in  question, 
there  is  nothing  but  mere  affirmative  words  of  grant,  and  none  that 

171 


CONSULAE  CASES 

import  a  design  to  exclude  the  subordinate  jurisdiction  of  other 
courts  of  the  United  States  on  the  same  subject-matter. 

Nor  is  there  anything  in  the  official  character  and  func-  (10) 
tions  of  a  consul  which  should  lead  us  to  suppose  ,  that  the  framers 
of  the  constitution  mean  to  confine  cases  affecting  such  oflScer  ex- 
clusively to  the  supreme  court.  A  consul  is  not  entitled,  by  the  laws 
of  nations,  to  the  immunities  and  privileges  of  an  ambassador  or  public 
minister.  lie  is  liable  to  civil  suits,  like  any  other  individual,  in  the 
tribimals  of  the  country  in  which  he  resides  ;  and  may  be  punished 
in  its  courts  for  any  offense  he  may  commit  against  its  laws;  Wheat. 
International  Law  181 ;  1  Kent's  Com.  43,  45.  He,  usually,  is  a  per- 
son engaged  in  commerce;  and  in  this  country,  as  well  as  others,  it 
often  happens,  that  the  consular  office  is  conferred  by  a  foreign  gov- 
ernment on  one  of  our  own  citizens.  It  could  hardly  have  been  the 
intention  of  the  statesmen  who  framed  our  constitution,  to  require 
that  one  of  our  citizens  who  had  a  petty  claim  of  even  less  than  five 
dollars  against  another  citizen,  who  had  been  clothed  by  some  foreign 
government  with  the  consular  office,  should  be  compelled  to  go  into 
the  supreme  court  to  have  a  jury  summoned  in  order  to  enable  him 
to  recover  it;  nor  could  it  have  been  intended,  that  the  time  of  that 
court,  with  all  its  high  duties  to  perform,  should  be  taken  up  with  the 
trial  of  every  petty  offence  that  might  be  committed  by  a  consul,  in 
any  part  of  the  United  States ;  that  consul  too,  being  often  one  of  our 
own  citizens.  There  is  no  reason,  either  of  policy  of  con- 
venience, for  introducing  such  a  provision  in  the  constitution;  and 
we  cannot,  -vvith  any  probability,  impute  such  a  design  to  the  great 
men  who,  with  so  much  wisdom  and  foresight,  framed  the  constitu- 
tion of  the  United  States;  they  have  used  no  words  expressly  pro- 
hibiting congress  from  giving  original  jurisdiction  in  cases  affecting 
consuls,  to  the  inferior  judicial  tribunals  of  the  United  States;  and  in 
the  absence  of  everj'  express  prohibition,  I  see  no  sufficient  grounds 
to  justify  this  court  in  implying  it,  and  pronouncing,  merely  upon 
such  implication,  that  the  act  of  1789  is  unconstitutional  and  void. 

(11)  The  judgment  of  the  district  court  in  this  case  must, 
therefore,  be  reversed,  and  the  motion  to  quash  the  writ  which  issued 
from  that  court  overruled. 

McMahon.  for  plaintiff  in  error. 

Johnson  and  Gh-nn,  for  defendant  in  error. 

GLASS  v.  THE  SLOOP  BETSEY,  (1794,  U.  S.) 

]    Whart.   796;   3  Dall.  6. 

Jay,  Supreme  Court. 

(Extract)   And  the  said  supreme  court  being  further  of  opinn 

172 


CONSULAR  CASES 

ion,  that  no  foreign  power  can  of  right  institute,  or  erect,  any  court 
of  judicature  of  any  kind,  within  the  jurisdiction  of  the  United 
States,  but  such  only  as  may  be  warranted  by,  and  be  in  pursuance 
of  treaties,  it  is  therefore  decreed  and  adjudged  that  the  admiralty 
jurisdiction,  which  has  been  exercised  in  the  United  States  by  the 
consuls  of  France,  not  being  so  warranted  is  not  of  right. 

GODDARD  V.  LUBY,  (1795,  U.  S.— France) 

1  Bay  435. 

Orimke  and  Waties,  Court  of  Common  Pleas  of  South  Carolina. 

Case  for  slanderous  words.  On  a  motion  made,  a  non-suit  was 
ordered  by  the  court,  as  the  parties,  plaintiff  and  defendant,  were 
French  citizens. 

By  the  12th  article  of  the  convention  between  France  and  Amer- 
ica, for  defining  the  functions  of  consuls,  etc.  it  is  declared,  "that 
all  disputes  between  the  subjects  of  his  most  Christian  Majesty  in 
the  United  States,  or  between  the  citizens  of  the  United  States  within 
the  dominions  of  the  most  Christian  King,  etc.  shall  be  determined  by 
their  respective  consuls  and  vice-consuls,  either  by  reference  to  arbi- 
trators, or  by  a  summary  judgment  without  costs."  Under  the  con- 
struction of  this  article,  the  court  (present,  GRIMKE  and  WATIES, 
Justices)  referred  the  parties  to  the  French  consul  for  redress. 

GOLDSBOROTJGH  v.  UNITED  STATES,  (1889,  U.  S.) 

25  Ct.  CI.  72. 

Davis,  Court  of  Claims  of  the  United  States. 

[Where  consul  seeks  to  recover  fees  for  certifying  invoices  of 
non-dutiable  goods,  there  must  be  certainty  in  number  of  such  in- 
voices else  claim  irrecoverable. 

A  consul  in  China  is  entitled  to  fees  collected  for  shipping  and 
discharging  seamen  on  foreign  built  vessel  sailing  under  American 
flag.— Ed.] 

GOLUBCHICK,  THE,  (1840,  Great  Britain— Russia) 

1,  Rob.  W.  143. 

Dr.  Lushington,  High  Court  of  Admiralty. 

Judgment — Dr.  Lushington. 

The  question  which  has  been  raised  in  this  case,  is  the  first  ques- 
tion of  the  kind  that  has  come  before  the  court,  since  I  have  been  in 
this  chair.     I  have,  therefore,  felt  anxious  to  examine  carefully  the 

173 


CONSULAR  CASES 

principle  upon  which  this  court  exercises  jurisdiction,  with  respect  to 
seamen  serving  on  board  foreign  vessels.  In  support  of  the  protest, 
it  has  been  urged,  that  the  court  has  no  jurisdiction,  save  by  con- 
sent of  the  ambassador,  consul,  or  minister  of  the  country  to  which 
the  vessel  belongs.  This  notion,  I  am  aware,  has  prevailed  in  these 
courts  with  re-  (147)  spect  to  cases  of  this  kind,  but  I  must  confess, 
that  I  have  always  felt  considerable  difficulty  upon  the  point ;  and  for 
this  reason,  that  if  the  court  does  not  possess  an  inherent  jurisdiction 
over  the  subject  matter,  it  is  not  possible  that  the  consent  of  an  in- 
dividual could  confer  any  such  jurisdiction.  I  think,  therefore, 
that  the  proper  mode  of  considering  the  question  is  this:  the  court 
must  possess  original  jurisdiction  over  the  subject  matter,  or  it  can 
have  none  at  all ;  for  the  consent  of  a  foreign  consul  or  minister  never 
could  confer  a  jurisdiction  upon  a  British  court  of  judicature. 

Now  upon  general  principle,  I  apprehend  that  this  court,  admin- 
istering, as  it  does,  a  part  of  the  maritime  law  of  the  world,  would 
have  a  right  to  interpose  in  cases  of  the  present  description.  Can  it 
then  be  consistent  with  the  principles  of  justice,  that  the  exercise  of 
this  right  should  depend  entirely  upon  the  consent  of  a  foreign  min- 
ister or  consul,  who  should  be  authorized  to  prohibit  the  court  al- 
together, or  to  induce  it  from  exercising  its  jurisdiction  ?  How  would 
the  question  stand  in  other  courts?  In  other  courts  of  this  country, 
I  have  no  doubt,  that  the  mariners  might  have  instituted  an  action 
in  personam  against  the  master  without  reference  to  any  consent  at 
all.  Why,  then,  should  not  the  proceedings  be  competent  on  their 
part  in  this  court  against  the  ship?  For  by  the  general  maritime 
law,  the  ship  is  the  primary  security  for  their  wages.  Is  it  just  or 
proper,  that  the  consent  of  the  foreign  representative  should  be  neces- 
sarj'  to  put  this  court  in  motion,  and  should  not  be  necessary  in  a  court 
of  common  law?  How  is  it  possible  there  can  be  any  such  difference 
between  them? 

Upon  general  principle,  then,  I  am  inclined  to  (148)  hold,  that 
this  court  does  possess  a  competent  jurisdiction  to  adjudicate  in  these 
cases ;  at  the  same  time,  the  exercise  of  this  jurisdiction  is  discretion- 
ar>'  with  the  court,  and  if  the  consent  of  the  representative  of  the 
government  to  which  the  vessel  belongs  is  withheld,  upon  reasonable 
groimds  bfing  shown,  the  court  might  decline  to  exercise  its  authority. 
Indeed,  circumstances  might  occur  upon  the  face  of  the  case  itself,  in 
which  this  difficulty  might  arise;  that  the  matter  in  dispute  was  so 
connected  with  the  municipal  law  of  a  foreign  country,  that  this  court 
would  be  incompetent  to  render  impartial  justice;  in  such  cases, 
undoubtedly,  the  court  would  decline  to  adjudicate.  Having  thus 
stated  my  opinion,  that  upon  general  principle,  this  court  has  an 

174 


CONSULAR  CASES 

authority  in  cases  of  this  kind  between  foreigners,  and  that  the  prop- 
riety of  exercising  that  authority  must  depend  upon  the  circum- 
stances of  each  particular  case,  I  will  now  shortly  advert  to  the  cases 
which  have  been  reported.  These  are  but  few,  and  I  cannot  find  that, 
in  any  of  them,  the  point  in  question  has  ever  been  directly  decided. 
In  the  case  of  the  Courtney,  which  has  been  referred  to  by  the  counsel 
for  the  owners ;  it  is  true,  that  Lord  Stowell,  to  whose  high  authority 
I  should  always  be  disposed  to  pay  the  greatest  respect  and  attention, 
expressed  himself  in  terms  implying  an  opinion,  that  the  court  of  ad- 
miralty could  not  entertain  a  suit  of  this  kind  without  the  consent  of 
the  representative  of  the  foreign  nation  to  which  the  vessel  belonged ; 
but  it  is  to  be  observed,  that  the  decision  in  that  case  is  not  a  decision 
in  point,  insomuch  that  the  mariners  in  that  case  sued  for  a  penalty 
beyond  their  wages  under  an  act  of  the  American  congress;  the  dif- 
ficulty, therefore,  which  (149)  Lord  Stowell  had  to  contend  with  in 
that  case  was,  that  he  could  not  enforce  the  municipal  law  of  the  coun- 
try upon  which  a  part  of  the  mariners'  claim  was  founded. 

The  next  case  is  the  case  of  the  Madonna  d'Idra,  reported  in  the 
first  volume  of  Dodson;  with  respect  to  which  it  is  also  to  be  re- 
marked, that  the  case  reported  does  not  bear  very  much  upon  the  case 
in  question.  The  vessel,  it  appears,  had  been  sold  in  a  cause  of  bot- 
tomry; a  claim  upon  the  proceeds  was  preferred  by  certain  Greek 
mariners,  and  the  question  was,  whether  they  were  entitled  to  priority 
of  payment.  A  further  distinction  is  also  to  be  noticed  with  respect  to 
that  case,  namely,  that  the  captain  was  bound  by  the  law  of  Turkey 
to  take  his  men  back  again,  or  to  find  them  conveyance  in  other  ves- 
sels ;  the  mariners,  therefore,  had  a  lien  upon  the  proceeds  of  the  ship 
for  their  subsistence. 

The  next  case  is  the  case  of  the  Wilhelm  Frederick,  1st  Haggard, 
but  in  this  case,  the  question  was  only  incidentally  raised;  the  court 
held,  that  the  ship  at  the  time  of  arrest  was  a  British  vessel,  the  for- 
eign owner  having  directed  that  she  should  be  given  up  to  satisfy  the 
demands  of  British  creditors.  The  decision  in  that  case,  therefore, 
was  only  to  this  extent,  that  the  surrender  of  the  vessel  by  the  foreign 
owner  was  sufiicient  to  entitle  the  seamen  to  proceed  in  this  court  to 
establish  their  claim.  The  last  case  to  which  I  shall  advert,  is  the 
case  of  the  Adolph,  3d  Haggard,  p.  249 ;  the  proceedings  in  that  case 
were  in  poenam  against  a  Hamburg  ship  in  a  cause  of  bottomry,  and 
an  application  was  made  to  the  court  by  one  of  the  bondholders,  that 
he  might  be  allowed  to  pay  the  wages  of  the  crew,  and  have  a  priority 
over  the  other  bondholders  for  the  (150)  amount  of  the  wages  so 
paid  out  of  the  proceeds  of  the  ship.  Sir  John  Nicholl.  before  whom 
the  motion  was  made,  declined  to  make  any  order,  upon  the  ground 

175 


CONSULAR  CASES 

that  there  was  no  one  to  consent.  This  was  the  extent  of  the  learned 
judge 's  decision  in  the  case  of  the  Adolph,  and  although  it  bears  more 
closely  than  the  other  cases  to  which  I  have  adverted,  upon  the  poinf 
to  be  decided  in  the  present  instance,  it  cannot,  I  think,  be  regarded  as 
a  positive  decision  upon  the  point  in  question. 

The  matter  resting  thus  with  respect  to  the  reported  cases,  I 
shall  now  address  my  consideration  to  one  or  two  of  the  circumstances 
peculiar  to  this  case.  In  the  course  of  the  argument,  a  discussion 
has  been  raised  by  the  counsel  in  the  cause,  whether  the  seamen  pro- 
moting the  proceedings  are  to  be  considered  as  Spanish  subjects,  or 
whether  for  the  purposes  of  this  suit  they  are  to  be  regarded  as 
subjects  of  the  Russian  government.  Now,  upon  this  point,  I  entertain 
no  doubt  whatever;  it  is,  I  conceive,  a  settled  doctrine  of  law,  that 
when  a  subject  of  one  country  enters  into  the  service  of  a  ship  belong- 
ing to  the  subjects  of  another  country,  he  must  be  considered  pro 
hoc  vice  to  be  a  subject  of  that  country  to  which  the  vessel  belongs. 
As  regards  the  promoters  of  the  present  proceedings,  therefore,  I  have 
no  hesitation  in  saying,  that  for  the  purposes  of  the  present  claim, 
they  are  to  be  considered  as  Russian  subjects,  and  this  upon  general 
principle,  without  reference  to  the  particular  ordinance  of  the  Spanish 
marine,  which  has  been  pleaded  in  the  rejoinder  that  has  been  given 
in.  Another  point  that  has  been  pressed  by  the  counsel  in  arguing  the 
case,  is  the  alleged  discharge  of  the  mariners  in  this  country;  and  it 
was  urged  with  considerable  force  (151)  in  support  of  the  mariners' 
claim,  that  it  would  be  an  extreme  hardship  upon  the  seamen,  if  the 
court  should  allow  them  to  be  turned  adrift  in  this  country,  and  the 
vessel  to  proceed  to  any  part  of  the  world  to  which  the  owners  might 
think  fit  to  send  her;  thereby  compelling  the  seamen  to  seek  their 
remedy  in  a  foreign  tribunal,  to  which  they  might  have  no  means  of 
access  from  want  of  resources.  Now  this  circumstance,  if  duly  estab- 
lished, would  undoubtedly  be  deserving  of  some  consideration  from 
the  court,s.  at  the  same  time,  it  must  be  observed,  that  the  alleged  hard- 
ship upon  the  mariners,  if  the  court  should  decline  to  entertain  their 
claim,  could  not  of  itself  confer  a  jurisdiction  upon  the  court;  if  the 
court  were  possessed  of  an  original  jurisdiction,  it  might  furnish  a 
strong  inducement  for  the  exercise  of  that  jurisdiction  in  the  present 
instance ;  but  it  would  not  give  a  jurisdiction  which  the  court  did  not 
previously  possess.  It  is  also  to  be  observed,  that  the  fact  itself  of 
the  as.serted  discharge  of  the  seamen  is  directly  put  in  issue  in  the 
pleadings.  In  deciding  the  question  that  has  been  raised,  therefore,  I 
cannot  rely  upon  the  fact  whether  they  were  discharged  or  not.  The 
last  circum.stance  in  the  case  to  which  I  must  advert,  is  of  a  very  pe- 
culiar nature ;  namely,  that  the  court  is  entirely  uninstructed  as  to  the 

176 


CONSULAR  CASES 

original  intention  of  the  owners  of  this  vessel  respecting  the  term- 
ination of  the  voyage;  and  also  respecting  the  nature  of  the  hiring, 
and  the  terms  upon  which  the  mariners  were  engaged.  These  facts 
must  have  been  within  the  entire  knowledge  of  the  master,  and  should 
have  been  explained  in  the  protest.  In  the  total  absence  of  any  in- 
formation upon  these  points,  the  court  is  placed  in  some  difficulty,  for 
if  it  is  to  enter  into  a  considera-(152)tion  of  the  case,  it  is  undoubt- 
edly a  matter  of  no  small  importance,  that  the  court  should  know 
whether  the  vessel  was  destined  to  a  Russian  port,  or  to  the  port  of 
any  other  country.  Under  the  circumstances  of  the  case,  then,  the 
course  which  I  shall  adopt  is  this ;  I  shall  direct  the  registrar  to  write 
a  letter  to  the  Russian  consul,  stating  that  the  suit  has  been  com- 
menced, and  requesting  that  he  will  make  such  a  representation  to  the 
court  as  he  shall  think  fit  upon  the  subject.  If  he  consents  to  the 
proceedings,  there  will  be  no  further  difficulty;  if  he  refuses  to  con- 
sent, or  declines  to  interfere  altogether,  I  shall  then  have  to  determine 
upon  the  course  to  be  pursued  by  the  court  under  the  circumstances. 


Upon  the  2l8t  of  May,  a  letter  was  addressed  to  the  registrar  of 
the  court,  by  the  Russian  consul,  to  the  following  effect : 

"Russian  Consulate  General, 
21st  May,  1840. 

*  *  Sir,  I  have  the  honour  to  acknowledge  the  receipt  of  your  letter 
of  the  16th  inst.,  and  in  reply,  to  acquaint  you,  that  having  been 
informed  by  the  o\sTier  of  the  Golubchick,  who  is  a  Russian  subject, 
that  the  said  vessel  is  no  longer  to  be  navigated  under  the  Russian 
flag,  but  peremptorily  to  be  sold  here ;  I  shall  not  in  my  official  char- 
acter as  consul  general  of  his  imperial  majesty  of  all  the  Russias,  in« 
terfere  in  the  cause,  &e.,  &c. 

"I  beg,  however,  that  this  letter  may  not  be  construed  on  my 
part  into  an  assent  or  a  dissent  from  the  proceedings  which  have  been 
instituted  against  the  vessel,  without  my  sanction  having  been  pre- 
(163)  viously  asked  or  obtained,  and  at  the  same  time  to  inform  you, 
that  I  consider  much  inconvenience  would  arise,  if  vessels  trading  to 
this  country,  Russian  owned,  and  navigated  under  the  Russian  flag, 
were  liable  to  be  seized  by  process  from  the  admiralty  court  in  this 
country  for  wages  due  to  the  seamen  under  contracts  which  should 
be  regulated  by  the  Russian,  and  not  by  the  British  code  of  maritime 
laws.    I  have,"  &c.,  &e. 

Upon  the  2d  session  of  Trinity  term,  4th  of  June,  1840,  the  court 
finally  disposed  of  the  question,  with  the  following  observations: 
Per  Curiam. 

177 


CONSULAR  CASES 

Since  the  question  was  argued  upon  a  former  court  day,  I  have 
had  an  opportimity  of  considering  the  case  referred  to  in  the  Amer- 
ican reports,  viz..  the  case  of  the  Jerusalem. 

The  decision  in  that  case  was  pronounced  by  a  judge  of  the  high- 
est eminence.  Mr.  Justice  Storie ;  and  the  principles  laid  down  in  that 
decision  most  strongly  confirm  the  previous  impression  of  my  own 
mind,  that  the  court  has  a  jurisdiction  in  all  cases  of  wages  as  ques- 
tions of  general  maritime  law;  although  in  some  cases  circumstances 
may  arise  to  induce  the  court  to  decline  the  exercise  of  that  jurisdic- 
tion. 

In  the  present  case  I  am  relieved  from  all  doubt  and  difficulty 
as  to  the  course  which  I  shall  adopt,  by  the  letter  which  has  been  ad- 
dressed to  the  registrar  of  this  court  by  the  Russian  consul.  That 
letter  states,  that  the  vessel  proceeded  against  is  no  longer  to  be  nav- 
igated under  the  Russian  flag,  but  to  be  peremptorily  sold  here.  The 
voyage  must,  there- (154) fore,  be  considered  as  having  terminated  in 
this  country,  and  the  case  is  consequently  one  in  which  the  court  is 
bound  to  exercise  its  jurisdiction. 

I  must,  therefore,  overrule  the  protest,  and  allow  the  cause  to  pro- 
ceed ;  and  I  wish  it  to  be  understood,  that  in  all  future  cases  of  this 
kind,  it  must  be  held  to  be  indispensable  that  notice  of  the  intended 
proceedings  should  be  given  in  the  first  instance  to  the  representative 
of  the  foreign  government.  In  so  directing,  I  do  not  mean  to  intimate 
that  the  court  would  feel  imperatively  bound  to  act  in  accordance 
with  the  views  that  might  be  entertained  by  such  representative;  but 
I  consider  it  is  expedient  that  such  intimation  should  be  given  in  order 
that,  if  any  objection  should  be  taken  against  the  prosecution  of  the 
proceedings  in  this  court,  the  court  being  informed  of  the  grounds 
upon  which  such  objection  is  taken,  might  be  enabled  to  form  its 
own  judgment  of  the  sufficiency  of  such  objection,  and  adopt  such  a 
course  as  may  be  most  conducive  to  the  furtherance  of  justice  in  the 
cause.  With  respect  to  the  question  of  costs,  I  shall  give  no  costs ;  the 
question  which  has  been  raised  is  a  question  primae  impressionis, 
in  which  I  have  in  some  measure  already  exceeded  what  any  of  my 
predecessors  have  done. 

GOULD  V.  STAPLES,  (1881,  U.  S.) 
9  Fed.  Rep.  159. 
Fox,  Circuit  Court. 

(160)  (Extract)  By  section  1695  the  president  is  authorized  to 
appoint  consular  agents  in  such  numbers  and  under  such  regulations 
as  he  may  deem  proper.  By  paragraph  17,  consular  regulations  of 
1881,  consular  agents  are  described  as — 

178 


CONSULAR  CASES 

"Acting  only  ai  the  representativee  of  their  principals,  and  are  subject  and 
subordinate  to  them,  and  are  paid  only  by  the  fees  collected  by  them,  retaining 
the  whole  or  such  portion  as  may  be  agreed  upon  between  them  and  their  prin- 
cipals, the  residue  being  received  by  the  principal,  under  the  sanction  of  the 
president. ' ' 

From  these  provisions  of  the  statutes  and  established  regulations, 
it  is  manifest  that  the  consular  agent  of  the  United  States  at  Toulon 
was  in  law  a  representative  of  the  plaintiff,  and  that  through  him  the 
plaintiff  was  in  fact  the  consul  for  the  port  of  Toulon,  discharging 
all  the  duties  of  a  consul  at  that  port  as  effectually  as  if  there  present 
attending  to  them  in  person ;  and  if  the  Charter  Oak  had  arrived  at 
Toulon  her  master  would  have  been  bound  to  have  deposited  his 
papers  at  the  consulate  in  that  city  with  the  agent  of  the  plaintiff,  and 
on  failure  so  to  do  would  have  been  liable  to  the  plaintiff  for  the  pen- 
alty. 

GRAHAM  V.  HOSKINS,  (1845,  U.  S.) 

Olc.  224;  Fed.  Cases  5,669. 

Betts,  District  Court. 

[Seamen's  wages. 

Seems  to  involve  no  consular  question. — Ed.] 

GRAHAM  V.  STUCKEN,  (1857,  U.  S.) 
4  Blatchf.  50;  Fed.  Cases  5,677, 
Nelson,  Circuit  Court. 

(51)  NELSON,  J.  (Extract)  The  first  question  presented  on 
this  application  is,  whether  the  court  is  without  jurisdiction  of  the 
case,  for  the  reason  that  the  defendant  Stucken  is  a  foreign  consul; 
for  then,  of  course,  no  order  for  the  writ  sought  to  be  obtained  can  be 
granted.  The  question  has  not  been  decided  by  any  judicial  author- 
ity, and  was,  it  seems,  purposely  waived  by  the  supreme  court  in  the 
case  of  The  United  States  v.  Ortega,  (11  Wheat,  467)  (See  also  note  to 
that  case,  469  to  475;  1  Kent's  Comm,,  315;  Curtis'  Comm,,  sec.  108.) 
But,  notwithstanding  this  apparent  doubt,  it  is  certain  that  the  fram- 
ers  of  the  judiciary  act  of  1789  understood  the  consitution  as  admit- 
ting jurisdiction  over  foreign  consuls  to  be  vested  in  other  federal 
courts  besides  the  supreme  court.  The  argument  against  the  jurisdic- 
tion of  this  court  is,  that  the  constitution  has  vested  exclusive  juris- 
diction in  the  case  in  the  supreme  court  of  the  United  States,  and  that 
this  suit  should  have  been  commenced  in  that  court.  The  last  clause 
of  section  2  of  article  3  of  the  constitution  declares,  that  ' '  in  all  cases 
affecting  ambassadors,  other  public  ministers  and  consuls,  and  those 

179 


CONSULAR  CASES 

in  which  a  state  shall  be  a  party,  the  supreme  court  shall  have  original 
jurisdiction."  Congress,  in  distributing  and  regulating  this  grant  of 
jurisdiction,  provided,  in  section  13  of  the  judiciary  act,  that  the  su- 
preme court  should  have  exclusive  jurisdiction  in  all  cases  against  am- 
bassadors, &c.,  and  original,  but  not  exclusive  jurisdiction  in  cases 
"in  which  a  consul  or  vice-consul  shall  be  a  party,"  thus  clearly  re- 
jecting the  idea  that  the  grant  in  the  constitution  in  respect  to  con- 
suls was  exclusively  to  the  supreme  court. 

Again,  the  grant  of  original  jurisdiction  to  the  supreme  court  is 
the  same  in  the  cases  (mentioned  in  the  previous  clause  of  the  consti- 
tution) "in  which  a  state  shall  be  a  party,"  as  in  the  case  of  a  con- 
sul. Those  cases  are  controversies — 1.  Between  two  or  more  states; 
2.  Between  a  state  and  citizens  of  another  state;  3.  Between  a  state 
and  foreign  states ;  and  4.  Between  a  state  and  citizens  or  subjects  of 
a  foreign  state,  that  is,  aliens.  Now,  if  the  grant  of  original  jurisdic- 
tion be  exclusive  in  the  supreme  court  in  the  case  of  a  consul,  it  is 
equally  exclusive  in  the  four  eases  above  enumerated;  for  the  grant 
is  in  the  same  clause  and  on  the  same  terms.  And  yet,  in  the  13th 
section  of  the  judiciary  act,  already  referred  to,  it  is  provided  that 
the  supreme  court  shall  have  exclusive  jurisdiction,  &c.,  where  a  state 
is  a  party,  &c.,  except  between  a  state  and  citizens  of  other  states,  or 
aliens,  in  which  latter  case  it  shall  have  original,  but  not  exclusive 
jurisdiction.  According  to  the  argument,  (53)  the  whole  of  this  ex- 
ception would  be  imconstitutional,  as  the  cases  mentioned  should  have 
been  vested  exclusively  in  the  supreme  court. 

And,  again, — what  is  still  more  explicit  in  respect  to  the  practi- 
cal construction  of  the  framers  of  the  judiciary  act,  many  of  whom 
were  eminent  members  of  the  Convention  that  formed  the  constitution 
— the  9th  section  provides  that  the  district  courts  of  the  United  States 
shall  have  jurisdiction,  exclusive  of  the  courts  of  the  states,  of  all  suits 
against  consuls  or  vice-consuls,  &c. 

In  the  face  of  all  this  legislative  interpretation  by  the  fathers 
of  the  constitution,  and  all  this  acquiescence  therein  since  1789,  I  can- 
not say  that  the  jurisdiction  in  this  case  is  exclusively  in  the  supreme 
court,  but  am  satisfied  that  it  may  be  conferred  upon  the  inferior 
tribunals  of  the  federal  judiciary.  Being  pressed  for  time,  I  have 
stated  simply  the  grounds  of  this  conclusion,  without  giving  more  at 
large  the  reasons  in  support  of  it. 

It  has  been  also  objected  that,  admitting  that  the  jurisdiction  is 
not  exclusive  in  the  supreme  court,  still  it  has  not  been  vested  in  the 
circuit  courts  of  the  United  States.  The  11th  section  of  the  judiciary 
act  provide;?,  that  the  circuit  courts  shall  have  original  cognizance,  con- 
currently with  the  state  courts,  of  suits  between  a  citizen  of  the  state 

180 


CONSULAR  CASES 

where  the  suit  is  brought  and  a  citizen  of  another  state.  The  case  be- 
fore me  falls  directly  within  this  provision.  It  is  said,  however,  that 
the  jurisdiction  cannot  be  concurrent  with  the  state  court,  as  that 
court  has  no  jurisdiction  of  the  case,  it  having  been  excluded  by  force 
of  the  9th  section,  already  referred  to.  But  the  answer  to  this  sug- 
gestion is,  that  the  phraseology  is  designed  simply  to  save  the  juris- 
diction of  the  state  court  where  it  exists,  in  other  words,  to  exclude  a 
conclusion. 

It  has  been  said,  also,  that  if  the  jurisdiction  of  the  case  is  not  in 
the  supreme  court,  and  may  be  vested  in  inferior  courts,  it  has  be(;n 
expressly  vested  in  the  district  court,  which  is  true.  But  there  is 
nothing  in  the  provision  conferring  (54)  it  upon  that  court,  that  ex- 
cludes the  jurisdiction  of  the  circuit  court.  I  am  satisfied,  therefore, 
that  this  court  has  jurisdiction  to  hear  and  decide  this  motion,  and 
also  the  case  out  of  which  it  has  arisen. 

GKAVES  V.  THE  W.  F.  BABCOCK,  (1897,  U.  S.) 

79  Fed.  Eep.  92. 
Brown,  District  Court. 

(93)  (Extract)  There  is  no  proper  or  sufficient  proof  of  an  inten- 
tion by  any  of  the  men  to  desert.  The  master's  testimony  on  this 
point  is  all  hearsay,  depending  on  reports  of  the  mate,  who  left  the 
ship  and  was  not  examined.  The  mate,  he  says,  reported  the  men  ab- 
sent and  their  clothes  missing.  The  weight  of  evidence  certainly  shows 
that  the  report  in  the  latter  respect  was  mistaken;  the  men's  clothes 
were  in  bags  in  the  forecastle  all  the  time  (except  a  couple  of  articles 
which  one  of  the  men  had  taken  ashore  to  sell),  and  were  there  when 
the  men  returned  to  the  ship  February  26th. 

The  evidence  does  not  satisfy  me  that  there  was  any  proper  in- 
quiry or  finding  by  any  one  as  to  the  fact  whether  the  men,  or  any  one 
of  them,  had  deserted.  Section  4600  of  the  revised  statutes  makes  it 
the  duty  of  consular  officers  **to  reclaim  deserters,"  and  to  employ 
the  local  authorities  to  that  end.  No  express  authority  is  given  to 
lodge  deserters  in  foreign  prisons.  But  that  section  requires  that 
"in  all  cases  where  deserters  are  apprehended,  the  consular  officer 
shall  inquire  into  the  facts." 

In  the  master's  deposition  appears  a  copy  of  a  letter  stating  as 
follows : 

"Shortly  after  the  arrival  of  the  ship  W.  F.  Babcock  Beveral  of  the  crew  de- 
serted. At  the  request  of  this  office  they  were  arrested  and  lodged  in  jail, 
where  they  complained  to  me  of  ill  treatment  at  the  hands  of  the  mate.  I  ium- 
moned  the  master,  and  mate,  also  the  men  to  appear  before  me.     After  a  full 

181 


CONSULAR  CASES 

invettigation  found  the  charges  to  be  without  foundation.  Their  jail  fees,  re- 
ward! offered  for  them,  etc.,  have  been  looked  over  hj  me  and  found  to  be  cor- 
rect aa  per  voucheri. 

"  (Signed)  Ellis  Mills,  General  Consul." 

This  letter  was  objected  to,  and  it  is  not  legal  or  competent  evi- 
dence as  to  the  matters  of  fact  stated  in  it.  I  have  deferred  the  de- 
cision of  the  cause  to  permit  evidence  of  any  docket  or  record  of  in- 
quiry' as  to  the  alleged  desertion  to  be  offered ;  instead  of  that  a  further 
certificate  is  offered  under  the  seal  of  the  consul,  dated  January  19, 
1897,  stating  that  in  the  month  of  February,  1896,  complaints  were 
successively  made  to  him  by  the  master  that  the  above-named  libelants 
had  deserted, — 

"Whereupon  at  the  request  of  the  master  I  issued  requests  to  the  marshal  of 
thii  government  for  the  arrest  and  detention  of  these  men,  and  they  were  after- 
wards brought  before  me,  and  it  then  and  there  having  been  made  to  appear  to 
my  satisfaction  that  the  aforesaid  complaints  were  true  *  ♦  *  and  that  the 
seamen  had  deserted  said  vessel,  and  absented  themselves  without  leave,  whereupon 
at  the  request  of  the  said  master  the  said  seamen  were  remanded  to  the  jail 
at  Honolulu  to  remain  there  until  the  said  vessel  should  be  ready  to  proceed  on 
her  voyage  or  till  the  master  should  require  their  discharge,  and  then  to  be 
delivered  to  the  said  master,  he  paying  all  the  costs  of  said  commitment  and  de- 
ducting the  same  out  of  the  wages  due  to  said  seamen.  And  I  further  certify  that 
the  reason  for  my  action  was  because  I  was  satisfied  that  unless  they  were  BO 
detained  they  would  again  desert. 

"Ellis  MiUs,  Consul  General." 

This  paper  has  not  the  appearance  of  having  been  prepared  from 
any  docket,  record,  or  notes  remaining  in  the  consul's  office.  It  does 
not  purport  to  be  a  copy  of  any  such  record  or  notes;  no  dates,  other 
than  the  month  are  given,  and  there  is  no  direct  statement  that  the 
consular  officer  made  any  inquiry  into  the  facts.  The  latter  part  seems 
intended  to  follow  the  provisions  of  section  4598,  which  does  not  apply 
to  proceedings  before  consular  officers,  but  to  proceedings  before  jus- 
tices of  the  peace  within  the  United  States.  In  the  case  of  The 
Coriolanus,  Crabbe,  239,  Fed.  Cas.  No.  7,380,  Judge  Hopkinson  said: 
"I  never  suffer  these  certificates  to  be  read;  they  are  infinitely  weaker 
than  ex  parte  depositions." 

To  make  proceedings  before  the  consul  evidence,  there  must  be 
either  a  duly-proved  copy  of  his  record,  or  else  his  deposition,  as  in 
the  case  of  other  witnesses.  These  papers  are  neither,  and  must, 
therefore,  be  disallowed  as  evidence. 

GRIFFIN  V.  DOMINGUEZ,  (1853,  U.  S.) 

2  Duer,  New  York  City  Superior  Court  656. 

Duer,  Superior  Court,  New  York. 

182 


CONSULAR  CASES 

[There  is  no  right  to  examine  in  a  state  court  a  foreign  consul  as 
a  judgment  debtor  and  he  cannot  be  attached  by  reason  of  any  refusal 
to  obey  an  order  for  examination. 

"The  exemption  of  a  consul  from  suit  in  state  courts  is  not  his 
personal  privilege — it  belongs  exclusively  to  the  United  States;  and 
cannot  therefore  be  waived  by  any  act  or  default  of  the  consul  him- 
self. "~Ed.] 

GRIN,  IN  RE,  (1901,  U.  S.— Russia) 
112  Fed.  Eep.  790. 
Morrow,  Circuit  Court. 

(Extract)  That  the  proceedings  should  be  initiated  and  carried  on 
by  the  demanding  government  is  imdoubted,  but  that  evidence  of  spe- 
cial authority  from  such  government  to  the  party  making  the  com- 
plaint is  necessary  is  a  contention  that  cannot  be  upheld.  The  com- 
plaint herein  contains  the  positive  statement  that  it  is  made  by  the 
Russian  consul  stationed  at  the  city  of  San  Francisco.  It  recites  that 
criminal  proceedings  upon  the  charge  alleged  have  been  instituted 
against  the  said  Grin,  that  a  mandate  has  been  issued  from  the  state 
department  of  this  government  for  his  surrender  upon  proper  pro- 
ceedings, and  prays  that  the  necessary  proceedings  may  be  had  as 
directed  in  said  mandate.  The  consular  title  is  appended  to  the  sig- 
nature of  the  complaining  party,  and  no  presumption  can  arise  from 
any  portion  of  the  complaint  that  it  was  made  other  than  as  and  for 
the  Russian  government.  The  cases  of  In  re  Herres  (C,  C.)  33  Fed. 
Rep.  165,  and  In  re  Adutt.  (C.  C.)  55  Fed.  376,  rightly  hold  such  a 
showing  in  a  complaint  to  be  amply  sufficient  for  the  purposes  of  the 
document. 

GRIN  V.  SHINE,  (1902,  U.  S.) 

187  U.  S.  181. 

Brown,  Supreme  Court. 

(Extract)  No  evidence  was  required  that  the  Russian  consul  had 
authority  to  make  the  complaint.  All  that  is  required  by  sec.  5270 
is  that  a  complaint  shall  be  made  under  oath.  It  may  be  made  by 
any  person  acting  under  the  authority  of  the  foreign  government 
having  knowledge  of  the  facts,  or,  in  the  absence  of  such  person,  by 
the  official  representative  of  the  foreign  government  based  upon  de- 
positions in  his  possession,  although  under  the  first  article  of  the  treaty 
the  accused  can  only  be  surrendered  upon  a  "requisition"  of  the  for- 
eign government,  and  by  art.  VI  such  I'equisition  must  be  made  by 

183 


CONSULAR  CASES 

the  "diplomatic  agent  of  the  demanding  government,"  and  in  case  of 
his  absence  from  the  seat  of  government,  by  the  "superior  consular 
officer. ' ' 

HAGGITT  V.  INIFF,  (1854,  Great  Britain) 

5  De  G.  M.  &  G.  911;  24  L.  J.,  Ch.  120;   1  Jur.   (N.  S.)  49. 

Lord  Justices,  Chancery. 

Affidavits  may  be  still  sworn  before  notaries  public  in  foreign  countriei,  (hay- 
ing authority  there  to  administer  oaths)  according  to  the  old  practice,  which  ia 
not  altered  in  this  respect  by  15  &  16  Vict.  c.  86,  §  22. 

Mr.  Nalder  applied  to  their  Lordships  for  a  direction  that  the 
clerk  of  records  and  writs  might  place  on  the  file  an  affidavit,  sworn 
before  Mr.  Allen,  a  notary  public  at  Geneva,  in  the  county  of  Ontario, 
jn  the  state  of  New  York,  in  America.  The  fact  of  Mr.  Allen  being  a 
notary  public,  and  that  credit  ought  to  be  given  to  his  official  acts, 
was  certified  by  the  British  consul  at  New  York,  under  the  official 
seal.  The  clerk  of  records  and  writs  doubted  whether  the  jurat  was 
sufficient.  There  was  an  affidavit  of  the  solicitor  in  the  cause,  stating 
that  he  had  applied  to  General  Campbell,  the  American  consul  in 
England,  who  informed  him  that  notaries  public  in  the  United  States 
were  authorized  by  law  to  administer  oaths  in  any  law  proceedings  in 
that  country. 

The  application  had  been  made,  in  the  first  instance,  to  Vice- 
Chancellor  Kindersley,  who,  on  being  referred  to  the  22d  section  of 
the  Chancery  Amendment  Act  (15  &  16  Vict.  c.  86),  considered  that 
the  case  was  not  within  that  section. 

THEIR  LORDSHIPS  (after  consulting  Mr.  Walker,  the  (911) 
registrar),  said  that  the  affidavit  would  have  been  sufficient  before  the 
passing  of  the  new  act,  and  that,  as  there  appeared  to  be  nothing  in 
the  act  to  exclude  it,  it  ought,  in  their  lordship 's  opinion,  to  be  placed 
on  the  file. 

HALL  V.  YOUNG,  (1825,  U.  S.) 

3  Pick.  80. 

Parker,  Massachusetts  Supreme  Court. 

PARKER  C.  .T.  delivered  the  opinion  of  the  court  to  the  following 
effect.  If  it  had  been  shown  upon  a  plea  to  the  jurisdiction  in  the 
original  action,  that  Mr.  Manners  was  a  consul,  a  judgment  against 
him  would  have  been  erroneous,  and  the  bail  would  be  discharged. 
But  that  fact  does  not  appear  on  the  record  in  that  action,  and  the 
agreement  to  be  defaulted  was  a  waiver  of  the  want  of  jurisdiction. 
It  is  said  that  all  courts  are  to  take  notice  of  a  person's  being  a  con- 

184 


CONSULAR  CASES 

sul,  on  account  of  his  exequatur;  but  he  may  be  a  consul  one  day  and 
cease  to  be  such  the  next,  and  yet  his  exequatur  may  not  be  taken  from 
him.  "When  therefore  he  is  sued,  if  he  would  avail  himself  of  his 
privilege,  he  must  make  it  appear  that  he  was  a  consul,  unless  the 
other  party  shows  it ;  as  by  calling  him  consul  in  the  original  writ. 
Judgment  aflSrmed. 

HARRISON  V.  VOSE,  (1849,  U.  S.) 

9   How.  372. 

Woodbury,  Supreme  Coiu't. 

(Extract)  (381)  The  proviso  of  the  act  seems  to  indicate  that  the 
papers  are  delivered  to  the  consul  chiefly  as  security  for  two  pur- 
poses; viz.,  the  payment  of  extra  wages  to  seamen  discharged,  and 
the  taking  on  board  destitute  seamen  when  bound  home;  and  hence, 
if  the  master  does  not  perform  what  is  thus  required,  he  is  not  en- 
titled to  his  papers  again,  even  after  an  entry  and  clearance. 
•  •  •  «  «  ••*• 

(382)  It  is  conceded  that  a  consul  is  the  chief  representative  and 
agent  of  his  country  in  most  foreign  ports,  and  as  such  to  be  resorted 
to  by  his  countrymen.  *  *  *  Those  functions  are  principally  to 
watch  over  our  trade, — actual  exports  and  imports ;  to  exercise  juris- 
diction in  some  respects  over  American  vessels  and  seamen  abroad; 
sometimes  of  a  judicial  character  (3  Taunt.  162),  when  they  stop  and 
come  ashore,  or  to  transmit  information  home  in  relation  to  them. 

To  be  sure,  he  has  a  few  other  duties  to  perform.  But  most  of 
them  are  disconnected  with  this  subject ; — as,  to  take  care  of  American 
property,  either  wrecked  or  belonging  to  deceased  persons ;  to  exercise 
at  times  even  diplomatic  fimctions ;  to  aid  his  countrymen  in  scientific 
researches ;  to  transmit  periodical  advices  on  every  thing  beneficial  to 
trade  or  the  arts,  and,  in  all  emergencies  among  strangers,  to  act  as 
the  friend  and  agent  of  commercial  visitors  from  his  own  country, 
Vattel,  Law  of  Nations,  Consuls ;  Warden 's  Consular  Establishments ; 
2  EUiot's  Am,  Dep.  Code,  454;  7  Pet.  276;  Bee's  Adm,  209;  1  Statutes 
at  Large,  254,  and  note;  10  Wheat.  66;  1  Mason  14;  1  McCulloch's 
Diet.,  Consul,  465-467;  2  Beawe's  Lex  Mercatoria  42. 

The  first  class  of  duties  may  have  furnished  some  reasons 
for  requiring  that  the  papers  of  vessels  be  lodged  with  the  consul 
after  an  arrival  to  stay  and  transact  business,  and  that  they  remain 
with  the  consul  till  the  vessel's  clearance.  All  of  that  class  look  to 
an  arrival  for  purposes  of  business — to  an  entry  and  clearance,  and  to 
a  stay  there  so  long  as  to  require  some  of  the  acts  connected  with  it, 
and  to  need  or  permit  the  interference  of  the  agent  of  their  country 

185 


CONSULAR  CASES 

in  some  of  his  appropriate  (383)  functions,  and  especially  to  enable 
him  to  report  imderstandingly  that  her  trade,  or  her  imports  and  ex- 
ports, are  on  American  account,  and  are  of  a  certain  value  and  char- 
acter. 

HATHAWAY  v.  JONES,  (1863,  U.  S.) 

2  Sprague  56;  Fed.  Ca§e8  6,212. 

Sprague,  District  Court. 

(Extract)  If  a  man  chooses  to  take  money  in  a  foreign  port,  at 
the  price  in  that  port,  he  can  do  so ;  but  if  he  does  not  agree  to  it,  he 
should  not  be  compelled  to  take  money  when  he  does  not  wish  for  it, 
and  at  consular  rates,  which  the  evidence  shows  are,  for  some  reason 
or  other,  almost  always  a  good  deal  below  what  would  seem  to  be  the 
fair  calculation  of  the  market  rate  of  the  place,  or  the  estimated  New 
Bedford  price,  less  freight  home  and  insurance.  By  settling  before 
the  consul,  a  commission  of  two  and  a  half  per  cent,  was  incurred. 
There  is  no  reason  for  this.  The  discharge  must  be  made  before  the 
consul,  but  the  payment  need  not  be  before  him.  It  may  be  with  or 
without  witnesses;  and  if  before  witnesses,  no  witness  charges  a 
commission  for  seeing  money  paid,  and  that  is  all  the  consul  did. 

HAVANA,  THE,  (1858,  U.  S.— Great  Britain) 

1  Sprague  402;  Fed.  Cases  6,226. 
Sprague,  District  Court. 

[Court  will  exercise  jurisdiction  in  certain  circumstances  "It  will 
do  so  for  the  purposes  of  justice,  and  the  more  readily,  if  no  objec- 
tion be  made  by  the  consul  of  the  nation  to  which  the  vessel  belonged." 

•  •  •  "As  these  (items),  or  some  of  them,  may  depend  upon 
British  law  and  usage,  I  shall  invoke  the  aid  of  the  British  consul,  by 
appointing  him  an  assessor  to  ascertain  what  amount  thereof,  if  any, 
should  be  allowed." — Ed.] 

HAYES  V.  J.  J.  WICKWIEE,  (1870,  U.  S.) 

7  Phila.  r/Ji;  Fed.  Cases  6,262. 
Cadualader,  District  Court. 

CADWALADER,  J. — This  case  arose  upon  a  libel  for  wages  and 
damages,  allowed  by  the  court  upon  the  certificate  of  the  British  con- 
sul being  filed,  that  there  was,  in  his  belief,  sufficient  cause  for  such 
process.  The  facts  were,  briefly  stated,  as  follows:  Libellant  was  a 
Briti.sh  seaman,  shipped  in  Great  Britain  for  the  round  voyage  to 
Philadelphia  and  back  to  a  port  in  Europe.  After  the  ship's  cargo 
was  discharged  at  this  port,  the  seaman  went  ashore  one  evening,  was 

186 


CONSULAR  CASES 

arrested,  by  the  local  authorities  for  an  alleged  breach  of  the  peace, 
etc.,  while  in  the  city,  and  locked  up  for  four  days.  Upon  being  dis- 
charged from  prison,  he  immediately  returned  to  the  barque,  with  a 
certificate  from  the  prison-keeper  of  the  cause  of  his  detention.  The 
master,  Murray,  had  meanwhile,  at  the  expiration  of  forty-eight 
hours'  absence  from  the  barque,  duly  entered  Hayes  upon  his  log- 
book as  a  deserter — upon  a  charge  of  total  desertion;  and,  when  he 
reported  himself  upon  the  barque  again,  with  the  cause  of  his  deten- 
tion, the  master  declined  to  receive  him  on  board ;  to  recognize  him  as 
one  of  his  seaman ;  to  pay  him  his  wages,  or  to  give  him  his  clothing. 

The  British  consul  was  next  appealed  to ;  and,  after  an  informal 
hearing  of  the  master  and  mariner,  at  a  time  suggested  by  the  mas- 
ter, decided  that  it  was  not  a  case  of  total  desertion ;  and  instructed 
the  master  that  he  should  allow  the  mariner  to  return  to  his  duty  on 
the  barque.  This  the  master  again  refused  to  do.  The  mariner  then 
took  boarding  at  a  seamen's  boarding  house  and  libelled  the  barque. 
Mr.  Mitcheson,  for  libellant,  contended  that  the  libellant,  having  been 
wrongfully  discharged  before  the  termination  of  the  voyage,  and  hav- 
ing been  prevented  from  re-shipping,  through  the  master's  detaining 
his  pay  and  clothing,  was  entitled  to  his  wages  until  re-shipped;  to 
his  expenses  for  boarding  whilst  on  shore ;  and  to  damages. 

Mr.  Coulston,  for  defendant,  contended  that  libellant  should  only 
be  allowed  wages  up  to  the  time  he  left  the  vessel; — less  the  expense 
and  increased  wages  incident  to  shipping  another  seaman  in  his  place. 

The  court  held,  that  the  consul  was  right :  and  that  the  course  of 
the  master  having  been  arbitrary  and  despotic  in  the  detention  of  the 
seaman's  clothing,  etc.,  libellant  was  entitled  to  wages  up  to  the  time 
of  decree ;  expense  of  boarding  for  twenty  days,  with  damages  for  de- 
tention of  his  clothing,  and  for  the  clothing  if  not  returned. 

Decree  accordingly. 

HEATHFIELD  v.  CHILTON,  (1767,  Great  Britain) 

4  Burr.  2,016. 

Lord  Mansfield,  King's  Bench. 

(Extract)  The  law  of  the  nations  does  not  take  in  consuls,  or 
agents  of  commerce ;  though  received  as  such,  by  the  courts  to  which 
they  are  employed.  This  was  determined  in  Barbuit's  case  in  chan- 
cery, which  was  solemnly  argued  before  and  determined  by  Lord  Tal- 
bot, on  considering  and  well-weighing  Barbeyrac,  Binkershoek,  Gro- 
tius,  Wincquefort,  and  all  the  foreign  authorities;  (for  there  is  lit- 
tle said  by  our  own  writers,  on  this  subject.)  In  that  case  several 
curious  questions  were  debated. 

187 


CONSULAR  CASES 

HERMAN  V.  HERMAN,  (1825,  U.  S.— France) 
4  Wash.  C.  C.  555;  Fed.  Cases  6,407. 
Washington,  Circuit  Court. 

Under  an  agreement  of  the  solicitors,  that  an  answer  to  be  given  in  France 
may  be  taken  and  sworn  to  before  any  person  authorized  to  administer  oaths  by 
the  laws  of  France;  the  agreement  is  not  complied  with  if  the  answer  be  sworn 
to  before  the  American  consul. 

The  defendant  resided  in  France,  and  the  solicitor  for  the  plain- 
tifiF  consented  that  his  answer  might  be  taken  and  sworn  to  before  a 
notary  public,  or  other  person  authorized  to  administer  an  oath  by  the 
laws  of  France.  The  answer  was  taken  by  the  American  consul,  and 
the  question  now  was,  whether  it  was  properly  taken  and  sworn  to 
"vvithin  the  terms  of  the  agreement. 

Washington,  J.  1  Denisart,  title  Consuls,  p.  519,  has  been  cited 
to  prove  that,  by  the  French  law,  consuls  are  authorized  to  administer 
oaths.  But  it  is  quite  obvious  that  the  author,  in  the  place  referred 
to.  is  speaking  of  the  power  and  duties  of  French  consuls,  residing  in 
foreign  countries;  and  not  of  foreign  consuls  residing  in  France. 

It  was  contended,  for  the  defendant,  that  the  act  of  congress  con- 
cerning consuls  gives  them  a  power  to  administer  oaths.  We  think 
that  it  is  not  generally  given  by  this  act,  but  that  it  is  confined  to  par- 
ticular cases  of  a  maritime  and  commercial  character.  But  if  the 
power  were  general,  it  would  not  remove  the  difficulty,  the  agreement 
being,  that  the  answer  should  be  taken  by  some  person  authorized  to 
administer  oaths  by  the  law  of  France.  But  for  this  agreement,  it 
must  have  been  taken  under  a  dedimus  potestatem. 

The  answer  was  not  allowed. 

Rawle,  for  plaintiff. 

Duponceau,  for  defendant. 

HERRES,  IN  RE,  (1887,  U.  S.— Canada) 

33   Fed.  Rep.    165. 
Brewer,  Circuit  Court. 

[Authentication  of  extradition  proceedings  by  U.  S.  vice-consul  in 
Canada. 

"In  other  word.s,  the  vice-consul  is  not  a  deputy,  but  an  acting 
consul." — Ed.] 

HERZOGIN  MARIE,  THE,  (1861,  Great  Britain) 

1  Lush.  292;  G  L.  T.  N.  8.  88. 

Dr.  Lushxngton,  High  Court  of  Admiralty. 

(Extract)  Suits  by  foreign  seamen  were  not  formerly  encouraged 

188 


CONSULAR  CASES 

in  this  court;  they  are  now  allowed  upon  a  principle  of  comity,  and 
with  a  view  to  prevent  injustice  to  seamen.  The  jurisdiction  of  the 
court,  however,  is  discretionary  only,  and  the  court  requires  as  a  con- 
dition that  previous  notice  should  be  given  to  the  consul  or  repre- 
sentative of  the  foreign  state.  Foreigners  here  are  bound  to  some  ex- 
tent by  the  acts  of  their  own  government,  and  in  shipping  matters 
by  the  act  of  their  consul.  If  the  representative  of  the  foreign  state 
expresses  his  dissent  to  the  suit,  this  court,  though  not  bound  to  do  so, 
will  incline  to  hold  its  hand  and  remit  the  foreign  master  to  remedy 
under  the  laws  of  his  own  country. 

HEYNSOHN  v.  MERRIMAN,  (1880,  U.  S.) 

1  Fed.  Rep.  728. 

Choate,  District  Courrt. 

[Statute  regarding  payment  of  wages  for  three  months  does  not 
apply  in  case  of  sick  sailor  left  without  his  consent. — Ed.] 

HILL  V.  THE  SACHEM,  (1894,  U.  S.) 

59  Fed.  Rep.  790. 
Brown,  District  Court. 

BROWN,  District  Judge.  The  evidence  of  incompetency  of  the 
libellant  as  cook,  is  not,  to  my  mind,  satisfactory.  It  is  certain  that 
after  the  arrival  of  the  ship  at  Hong  Kong,  the  captain  was  determined 
to  get  rid  of  the  libellant  as  cook;  and  it  is  equally  certain  that  the 
consul,  before  whom  both  went,  endeavored  to  favor  the  captain's 
wishes,  while  he  at  the  same  time  refused  to  afford  the  libellant  any 
opportunity  to  prove  his  capacity  or  fitness  for  the  place.  The  cap- 
tain made  no  charges  against  him  in  the  log  until  after  the  seamen 
had  been  sent  ashore.  The  alternative  was  forced  upon  him,  either  to 
go  back  on  board  the  ship  and  be  disrated,  or  else  to  be  discharged  at 
Hong  Kong;  and  that,  without  any  hearing  on  the  merits.  This 
was  an  injustice  to  the  libellant,  and  apparently  an  abuse  by  the  con- 
sul of  his  position  and  influence. 

Where  a  hearing  has  been  had  on  the  merits,  on  the  demand  of 
the  master,  or  the  seaman,  and  a  proper  record  preserved  of  the  con- 
sul's decision  and  judgment,  discharging  the  seaman,  it  is  ordinarily 
entitled  to  full  credence,  notwithstanding  the  contradictions  made  by 
the  seaman  afterwards,  such  as  I  have  not  unfrequently  had  in  pre- 
vious cases.  In  the  present  case,  there  was  no  hearing,  no  judgment, 
and  no  record,  so  far  as  the  testimony  shows.  The  libellant  was  paid 
$200,  his  wages  up  to  the  moment  of  discharge,  which  he  received 
under  protest.     Such  a  forced  discharge,  with  no  hearing  on  the 

189 


CONSULAR  CASES 

merits,  at  a  distant  place,  and  with  no  pay  beyond  the  day  of  dis- 
charge, is  inhumane  and  opposed  to  the  policy  and  the  statutes  of  this 
countn-,  (Rev.  St.  §  4580;)  and  it  is  no  defense  that  it  was  abetted, 
so  far  as  appears,  by  the  irregular  action  of  the  consular  office.  The 
libellant  was  unable  to  obtain  employment  to  return  from  Hong  Kong, 
and  took  passage  for  San  Francisco  at  an  expense  of  $196,  and  thence 
to  New  York,  at  an  expense  of  $91.50.  To  this  I  add  one  month's 
wages,  $40,  all  of  which,  with  interest,  amounts  to  $347.15,  for  which 
a  decree  may  be  entered,  with  costs. 

HINDE,  SUCCESSION  OF. 
Hennen'i  La.  Dig.  Ed.  1861,  p.  582. 

[This  case  cited  in  5  Moore  114,  seems  to  contain  nothing  relative 
to  consuls. — Ed.] 

HIHDSGAUL  v.  THE  LYMAN  D.  FOSTER,  (1898,  U.  S.) 

85  Fed.  Rep.  987. 
Hanford,  District  Court. 

[In  this  case  mate  from  American  ship  assaulted  captain  in  for- 
eign port — was  sentenced  to  imprisonment  and  captain  paid  consul 
wages.    Consul  paid  expenses  of  detention  giving  difference  to  mate. 

If  there  was  an  misapplication,  the  consul  and  not  the  ship  was 
liable.— Ed.] 

HITZ,  EX  PARTE,  (1884) 

111  U.  S.  766. 

[Seems  to  involve  no  points  affecting  consul. — Ed.] 
HOLLANDER  v.  BAIZ,  (1890,  U.  S.) 

41  Fed.  E«p.  732. 
Brown,  District  Court. 

[See  also  in  re  Baiz.  Seems  to  contain  nothing  but  what  is  found 
in  re  Baiz. — Ed.] 

HOPE,  THE,  riSia,  Great  Britain) 

1  Dod.  226. 

Sir  William  Scott,  High  Court  of  Admiralty. 

[Consuls  have  no  authority  to  grant  enemy's  ships  exemption 
from  seizure — 

In  this  case  the  belligerent  consul  seems  to  have  remained  in 
enemy's  territory. — Ed.] 

190 


CONSULAR  CASES 

HUTCHINSON,  EX  PARTE,  (1848,  Great  Britain) 

17  L.  J.  N.  S.  C.  P.  111. 

Per  Curiam,  Court  of  Common  Pleas. 

(Extract)  A  special  commission  had  been  issued  to  three  mer- 
chants at  Maderia,  or  any  two  of  them,  to  take  the  acknowledgment  of 
a  married  woman,  under  3  &  4  "Will.  4.  c.  74.  s.  83,  which  was  cer- 
tified to  have  been  done  at  Maderia.  The  jurat  to  the  certificate  was 
in  the  following  form : — 

"Sworn  in  the  island  of  Maderia,  on  the  27th  of  November,  in 
the  year  of  our  Lord  1847.    Before  me, 

(Signed)  "George  Stoddart, 

"Her  Britannic  majesty's  consul,  and  authorized  by  the  laws  of  the 
island  of  Madiera  to  administer  oaths  in  the  island  of  Madiera." 
On  the  same  parchment  was  added  the  following  certificate : — 
"I,  Servulo  Nicolao  Sowzao  Drommond,  notary  public,  &c.  at 
Madiera,  certify  that  her  Britannic  majesty's  consul,  as  such,  is  en- 
titled to  administer  oaths  in  the  island  of  Madiera." 

COLE  now  moved  that  the  oflficer  of  the  court  might  be  directed 
to  receive  and  file  the  above  certificate,  &c.,  which  he  had  objected  to 
do  without  the  order  of  the  court. — It  was  suggested,  first,  that  the 
certificate  should  have  specified  the  place  at  which  the  acknowledg- 
ment was  taken;  but  it  is  submitted,  that  the  words  "at  Madeira" 
are  sufiicient,  and  that  the  place  in  the  island  where  the  commission 
was  executed  need  not  be  now  precisely  defined.  In  re  Shufflebottom  * 
decides  that  a  certificate  stating  that  the  acknowledgment  was 
taken  in  Philadelphia  is  sufficient.  The  general  rules  of  this  court  of 
Hilary  term,  1834,'  do  not  direct  how  certificates  of  acknowledg- 
ment, taken  under  special  commissions,  are  to  be  verified ;  those  rules 
are  to  be  confined  to  acknowledgments  in  this  country,  and  the  of- 
ficer has  adopted  the  practice  with  respect  to  acknowledgments  taken 
abroad  under  this  act,  which  prevailed  in  this  court  under  the  rule  of 
this  court  of  Hilary  term,  14  Geo.  3.,*  relating  to  common  recover- 
ies. It  has  been  held  that  the  6  Geo.  4.  c.  87.  s.  20,  which  authorizes 
a  British  consul  at  a  foreign  port  to  administer  oaths,  &c.,  does  not 

*  6  Scott,  898. 

*  1  Bing.  N.  C.  242;  S.  c.  3  Law  J.  Rep.  (n.  s.)  C.  P.  1. 

'  By  -which  it  is  ordered,  '  *  That  if  the  party  or  parties  shall  be  in  Ire- 
land, or  in  any  other  part  or  parts  beyond  the  seas,  then  the  aflSdavit  or  affi- 
davits shall  be  made  by  one  of  the  commissioDers  who  hath  taken  the  acknowl- 
edgment of  the  warrant  or  warrants  of  attorney,  and  shall  be  sworn  either  before 
some  person  duly  authorized  to  take  affidavits  in  this  court,  or  before  some  mag- 
istrate of  the  place,  where  such  acknowledgment  shall  be  taken,  having  authority 
to  administer  an  oath,  and  in  the  presence  of  a  public  notary,  which  notary  shall 
also  certify,  in  writing,  under  his  hand  and  seal,  as  well  the  due  administering  of 
this  oath,  as  also  the  name,  signature,  and  office  of  the  magistrate  administering 
the  same." 

191 


CONSULAR  CASES 

give  such  consul  power  to  act  in  cases  of  this  nature,  where  there  are 
native  authorities  to  administer  the  oath — In  re  Eady ; '  but  as 
it  appears  here  from  the  jurat,  that  the  British  consul  can  administer 
an  oath  in  Madeira  by  the  laws  of  that  place,  which  fact  is  duly  au- 
thenticated by  the  certificate  of  a  public  notary  at  Madeira,  the  spirit 
and  intention  of  the  act,  as  well  as  the  practice  of  this  court,  are 
abundantly  satisfied. 

Per  Curiam. — We  think  the  certificate  of  the  notary  shews  that 
the  British  consul  was  authorized  to  administer  the  oath,  and  there- 
fore the  certificate,  &c.  may  be  received  and  filed. 

Motion  granted. 

HTJTCHINSON  v.  COOMBS,  (1825,  U.  S.) 
Ware.  65;  Fed.  Cases  6,955. 
Ware,  District  Court. 

(SyllabuB)  The  certificate  of  a  consul  that  the  seaman  was  discharged  with 
his  approbation,  will  not  preclude  the  court  from  inquiring  into  the  cause  of  the 
discharge,  and  awarding  damages,  if  the  discharge  was  unjustifiable. 

lASIGI,  IN  EE,  (1897,  U.  S.) 
79  Fed.  Eep.  751. 
Brown,  District  Court. 


BROWN,  District  Judge.  This  is  a  proceeding  by  habeas  corpus 
to  procure  the  release  of  the  prisoner,  the  Turkish  consul  general  at 
Boston,  from  custody,  upon  a  commitment  made  by  a  city  magistrate 
on  a  charge  of  embezzlement  in  Massachusetts  in  violation  of  the  law 
of  that  state,  but  not  in  violation  of  any  statute  of  the  United  States. 
The  commitment  was  in  pursuance  of  a  law  of  the  state  of  New  York, 
authorizing  such  a  commitment  for  30  days  to  await  any  requisition 
from  the  governor  of  Massachusetts. 

(752)  The  petition  avers  that  the  accused  is  the  consul  general  of 
the  sultan  of  Turkey,  at  Boston,  duly  recognized  as  such  by  the  gov- 
ernment of  the  United  States ;  that  the  embezzlement  is  charged  to 
have  occurrerd  on  July  1,  1892;  that  he  was  arrested  while  on  a  visit 
here,  where  access  was  impossible  to  his  books  and  papers  to  vindi- 
cate himself;  and  that  no  indictment  has  been  found  against  him; 
and  it  is  contended  that  the  proceedings  before  the  city  magistrate 
were  without  authority  or  jurisdiction,  because  of  the  petitioner's 
consular  office.  The  amended  return  to  the  writ  shows  that  the  peti- 
tioner is  a  native-bom  citizen  of  Massachusetts. 

*6  Dowl.  615. 

192 


CONSULAR  CASES 

A  consul  is  not  entitled,  by  virtue  of  his  office  as  consul  merely,  to 
the  immunities  of  a  foreign  minister.  On  the  contrary,  according 
to  the  rule  of  international  law,  he  is  subject  civilly  and  criminally, 
like  other  residents,  to  the  tribunals  of  the  country  in  which  he  re- 
sides, 1  Kent,  Comm.  *44;  Wheat,  Int.  Law  (Lawrence's  Ed,)  423; 
The  Anne,  3  Wheat,  435 ;  Gittings  v.  Crawford,  Taney,  1,  Fed.  Cas. 
No.  5,465 ;  Coppell  v.  Hall,  7  Wall,  542,  553 ;  In  re  Baiz,  135  U.  S, 
424,  10  Sup  Ct,  854 ;  HoUander  v,  Baiz,  41  Fed,  732, 

Under  our  dual  judicial  system,  state  and  federal,  in  the  absence 
of  any  special  provision  of  law,  the  petitioner  would,  therefore,  be 
subject  to  arrest  and  prosecution  in  the  local  tribunals  in  the  same 
manner  as  other  persons;  so  that  the  question  presented  is  not  one 
of  immunity  from  punishment,  but  only  as  to  the  proper  mode  of  pro- 
ceeding, and  whether  his  commitment  and  detention  by  a  city  magis- 
trate under  a  state  law  for  rendition  to  Massachusetts,  where  alone  the 
offense  can  be  tried,  are  unlawful. 

The  provisions  of  the  constitution,  and  the  acts  of  congress  there- 
under, as  respects  public  ministers  and  consuls,  create  a  limited  class 
of  cases  which  are  sui  generis.  By  the  second  section  of  the  third 
article  of  the  constitution  the  judicial  power  of  the  United  States  is 
extended  to  '*all  cases  affecting  ambassadors,  other  public  ministers, 
and  consuls;"  and  as  to  this  special  class  of  cases  the  constitution 
in  the  same  section  further  declares  that  "the  supreme  court  shall 
have  jurisdiction."  Thus  all  cases  affecting  consuls,  whether  civil  or 
criminal,  and  whether  arising  under  acts  of  congress,  or  under  the 
common  law  or  state  statutes,  are  made  cognizable  by  the  supreme 
court,  and  thus  "cognizable  under  the  authority  of  the  United  States," 
without  any  further  action  by  congress.  U.  S,  v,  Hudson,  7  Cranch, 
32,  33.  Under  the  general  grant  of  judicial  power,  congress,  how- 
ever, further  provided  by  the  judiciary  act  of  1789  (1  Stat.  73)  that 
the  supreme  court  should  have  "original  but  not  exclusive  jurisdic- 
tion of  all  suits  in  which  a  consul  or  vice-consul  shall  be  a  party" 
(section  13) ;  that  the  district  courts  "shall  have,  exclusive  of  the 
courts  of  the  several  states,  cognizance  of  all  crimes  and  offenses  that 
shall  be  cognizable  under  the  authority  of  the  United  States,  where 
the  punishment  should  not  exceed  six  months'  imprisonment,"  etc.; 
"and  shall  also  have  jurisdiction,  exclusive  of  the  courts  of  the  several 
states,  of  all  suits  against  consuls  and  vice-consuls,  except  for  offenses 
above  the  description  aforesaid  (section  9)  ;  and  that  the  circuit  courts 
shall  have  exclusive  cognizance  of  all  crimes  and  offenses  cognizable 
under  the  authority  of  the  United  States  (except  where  otherwise 
(753)  provided),  and  concurrent  jurisdiction  with  the  district  courts 
of  the  crimes  and  offenses  cognizable  therein." 

193 


CONSULAR  CASES 

Under  these  provisions  it  remained  the  accepted  law  until  1875, 
that  the  federal  courts  had  exclusive  jurisdiction  of  offenses  by  con- 
suls, whether  at  common  law  or  under  state  or  United  States  statutes. 
The  ordinary  rule  that  the  United  States  could  not  punish  common 
law  or  state  offenses,  did  not  apply.  U.  S.  v.  Ravara,  2  Dall.  297 ;  Com. 
V.  Kosloff,  5  Serg.  &  R.  545 ;  U.  S.  v.  Ortega,  11  Wheat.  472,  473,  note. 
And  Tennessee  v.  Davis,  100  U.  S.  257,  and  Virginia  v.  Paul,  148 
U.  S.  107,  13  Sup.  Ct.  536,  were  decided  on  the  same  principle. 

The  provisions  of  the  judiciary  act  were  carried  into  the  United 
States  Revised  Statutes  (enacted  June  22,  1874)  without  any  sub- 
stantial change,  but  imder  a  different  arrangement.  See  section  563, 
pars.  1,  17;  section  629,  par.  20;  section  687;  section  711,  pars.  1,  8. 
By  this  latter  paragraph  (8)  the  jurisdiction  of  the  state  courts  was 
excluded  in  all  "suits  or  proceedings"  against  consuls.  The  word 
"proceedings"  in  that  paragraph  was  new;  while  the  word  "offenses," 
which  was  in  the  exception  in  section  9  of  the  judiciary  act,  was  omit- 
ted in  paragraph  8  of  section  711. 

By  the  act  of  February  18,  1875  (18  Stat.  316,  c.  80),  the  eighth 
paragraph  of  section  711  was  stricken  out.  The  provisions  of  sections 
563  and  629  conferring  jurisdiction  on  the  federal  courts  in  all  cases 
against  consuls,  both  of  crimes  and  of  suits,  were  left  untouched ;  and 
so  was  the  exclusive  jurisdiction  of  crimes  and  offenses  under  the  first 
paragraph  of  section  711, 

It  is  contended  that  by  the  repeal  of  the  eighth  paragraph  of 
section  711,  referring  only  to  "suits  or  proceedings"  against  consuls, 
the  jurisdiction  of  the  .state  courts  is  opened  to  the  prosecution  of 
consular  crimes  and  offenses  against  the  state  laws ;  whereas  it  is  urged 
in  behalf  of  the  petitioner  that  this  repeal  gives  no  such  jurisdiction 
to  the  state  courts,  but  leaves  consular  offenses  cognizable  as  before  in 
the  federal  courts  alone,  both  by  implication,  from  the  nature  of  the 
consular  relation,  which  involves  the  United  States  with  foreign 
powers,  and  also  by  force  of  paragraph  1  of  secion  711  which  gives  the 
federal  courts  exclusive  jurisdiction  over  "all  crimes  and  offenses 
cognizable  under  the  authority  of  the  United  States."  See  Miller, 
Lect.  Const,  pp.  325,  326;  Cooley,  Lect.  Const,  p.  53;  U.  S.  v.  Ravara, 
supra;  per  Story.  J.,  in  U.  S.  v.  Coolidge,  1  Gall.  488,  Fed.  Cas.  No. 
14,857;  per  Tilghman,  C.  J.,  in  Com.  v.  Kosloff,  5  Serg.  &  R.  585. 

As  respects  any  actual  intention  of  congress,  the  repeal  of  para- 
graph 8  of  .section  711,  by  the  act  of  1875,  affords  no  light.  The  ex- 
planation of  that  repeal  is  difficult,  if  not  impossible.  The  act  is  en- 
titled "An  act  to  correct  errors  and  supply  omissions"  in  the  revised 
statutes  of  the  United  States.    It  embraces  over  70  different  subjects; 

194 


CONSULAR  CASES 

and  the  first  section  of  the  act  declares  that  the  amendments  therein 
made  are  made  "for  the  purpose  of  correcting  errors  and  supplying 
omissions"  in  the  revised  statutes  "so  as  to  make  the  same  truly  ex- 
press" the  laws  in  force  on  December  1,  1873.  There  is  no  doubt  that 
on  December  1,  1873,  the  jurisdic-(754)tion  of  the  federal  courts  over 
consular  offenses  was  exclusive.  In  both  houses  of  congress  when  the 
bill  was  presented,  as  appears  from  the  Congressional  Record,  mem- 
bers were  induced  to  withdraw  proposed  amendments  on  the  positive 
assurance  that  this  act  contained  no  new  legislation  and  was  solely 
for  the  purposes  above  expressed.  So  far  as  concerns  crimes  and  of- 
fenses, it  may  have  been  considered  that  the  first  paragraph  of  section 
711  included  all  offenses  committed  by  consuls;  and  that  the  eighth 
paragraph  had  no  reference  to  "offenses,"  as  it  covered  only  "suits 
or  proceedings. ' '  But  no  such  explanation  is  possible  as  regards  civil 
suits  against  consuls,  which  were  certainly  embraced  in  paragraph 
8  of  section  711,  and  nowhere  else;  and  that  paragraph  probably  re- 
ferred solely  to  civil  suits.  But  however  it  came  about,  the  act  of 
1875  was  passed,  and  paragraph  8  of  the  revised  statutes  stands  re- 
pealed. So  that,  as  stated  by  Mr.  Justice  Harlan  in  Bors  v.  Preston, 
111  U.  S.  261,  4  Sup.  Ct.  407,  there  is  now  no  statutory  provision, 
which,  in  terms,  makes  the  jurisdiction  of  the  federal  courts  exclusive 
in  suits  (i.  e.  civil  suits)  against  consuls.  But  the  declared  purpose 
of  the  act,  and  the  circumstances  of  its  passage,  deprive  the  repeal 
of  paragraph  8  of  any  effect  by  implication,  beyond  the  necessary 
meaning  of  the  repeal  itself.  Refrigerating  Co.  v.  Sulzberger,  157 
U.  S.  1,  39, 15  Sup.  Ct.  508. 

There  is  a  manifest  propriety,  amounting  sometimes  to  a  practical 
necessity  in  order  to  avoid  international  complications,  that  the  prose- 
cution, punishment  or  pardon  of  consuls  which  would  necessarily 
materially  affect  their  personal  attention  to  their  consular  duties, 
should  be  within  the  control  of  the  federal  courts  and  of  the  federal 
government  to  which  the  consuls  are  accredited  and  which  alone  is 
responsible  to  foreign  powers  for  the  treatment  of  their  representa- 
tives. While  imprisonment  for  debt  continued,  the  same  considera- 
tions, though  in  a  less  degree,  applied  to  civil  suits.  But  since  im- 
prisonment for  debt  has  been  abolished,  the  grounds  for  exclusive 
federal  jurisdiction  in  civil  suits  against  consuls  exist  in  but  small  de- 
gree, if  at  all;  while  in  all  criminal  cases,  all  the  original  considera- 
tions of  policy  and  propriety  remain  unchanged. 

I  do  not  thing  it,  however,  necessary  or  appropriate  at  this  time 
to  pass  upon  the  question  whether  the  jurisdiction  of  the  federal  courts 
over  consular  offenses  is  now  concurrent  with  the  state  courts,  or  ex- 

195 


CONSULAR  CASES 

elusive  of  the  state  courts,  either  by  implication,  or  under  paragraph 
1  of  section  711.  The  only  question  needful  for  me  to  determine  is 
whether  the  petitioner  is  unlawfully  held  in  custody.  The  offense 
with  which  he  was  charged  is  an  offense  against  the  state  of  Massa- 
chusetts. He  was  committed  by  a  committing  magistrate  under  sec- 
tion 829  of  the  criminal  code  of  New  York,  which  undoubtedly  covers 
the  case  in  general  terms,  making  no  reference  to  the  official  position 
of  the  accused.  As  a  consul  is  amenable  to  the  local  law,  his  arrest 
and  detention  are,  therefore,  lawful,  unless  they  are  prohibited  by 
implication  or  by  section  711  of  the  revised  statutes  of  the  United 
States.  But  that  section,  even  giving  to  its  terms  the  broadest  effect, 
goes  no  further  than  to  exclude  "the  jurisdiction  of  state  courts." 
This  refers  to  proceed- (755)  ings  which  are  properly  in  court,  or  form 
some  part  of  the  action  of  a  court.  It  does  not  extend  to  proceedings 
out  of  court.  It  does  not  forbid  the  exercise  of  the  police  power  of  the 
state,  nor  the  arrest  of  a  consular  officer  by  a  policeman  when  com- 
mitting a  crime,  nor  his  consequent  detention  for  surrender  to  the 
proper  tribunal  for  punishment.  And  so  the  commitment  of  a  consu- 
lar offender  by  a  magistrate,  merely  for  the  purpose  of  transmitting 
him  to  the  state  where  the  crime  was  committed,  and  where  alone  he 
can  be  tried,  is  not  a  proceeding  in  court  or  by  any  court,  (Robert- 
son V.  Baldwin  [Jan.  25,  1897]  17  Sup.  Ct.  326),  and  therefore  not 
prohibited  by  section  711.  And  so  whatever  implications  in  favor  of 
exclusive  federal  jurisdiction  in  consular  cases  may  be  claimed,  they 
are  in  no  way  incompatible  with  a  preliminary  arrest  by  a  state  mag- 
istrate for  removal  to  the  proper  state  for  trial  in  whichever  tribunal 
is  appropriate.  The  object  of  any  such  exclusive  jurisdiction  in  the 
federal  courts,  if  it  still  exists  in  fact,  is  evidently  quite  foreign  to 
such  a  preliminary  proceeding  as  this,  the  purpose  of  which  is  the 
transmission  of  offenders  to  the  state  where  the  offense  is  committed, 
to  be  there  brought  to  trial  in  the  appropriate  court,  whether  state  or 
federal.  All  quesions  under  the  United  States  statutes  as  to  the 
proper  tribunal  for  a  trial  of  the  cause  can  be  more  appropriately 
heard  and  determined  there.  This  course  seems  the  more  proper  in 
a  case  like  the  present,  inasmuch  as  section  1014  of  the  revised  stat- 
utes, the  only  one  under  which  removal  could  be  had  through  federal 
proceedings,  is  limited  to  cases  of  "crimes  or  offenses  against  the 
United  States";  and  this  is  not  such  an  offense.  Either,  therefore, 
the  petitioner  mu.st  be  amenable  to  such  proceedings  as  the  present, 
or  else  he  cannot  be  arrested  or  sent  back  at  all.  As  I  cannot  find 
that  the  arrest  and  detention  of  the  accused  under  the  law  of  this  state, 
for  the  purposes  specified,  are  unlawful,  the  application  must  be  de- 
nied. 

196 


CONSULAR  CASES 
lASIGI  V.  VAN  DE  CARE,  (1897,  U.  S.) 

166  U.  S.  391. 

Fuller,  Supreme  Court, 

(393)  (Extract)  The  contention  of  petitioner  was  that  no  court 
of  the  state  of  Massachusetts  had  jurisdiction  to  entertain  a  criminal 
prosecution  against  him  by  reason  of  the  matters  specified  in  the 
commitment,  jurisdiction  being  vested,  because  of  his  official  position, 
exclusively  in  the  federal  courts;  but  the  conclusion  of  the  district 
court  rested  on  the  ground  that  whatever  implications  in  favor  of  ex- 
clusive federal  jurisdiction  might  be  claimed,  they  were  in  no  way  in- 
compatible with  the  preliminary  arrest  by  the  magistrate  for  removal 
to  the  state  where  the  crimes  charged  against  him  were  alleged  to  have 
been  committed,  and  where  all  questions  as  to  the  proper  tribunal  for 
trial  could  be  more  properly  heard  and  determined. 

On  the  argument  in  this  court,  it  appeared  from  a  communica- 
tion from  the  assistant  secretary  of  state,  under  date  of  March  19, 
that  lasigi  had  been  removed  from  his  consular  office,  and  that  all  of- 
ficial connection  between  him  and  the  Turkish  government  had  been 
severed,  as  the  department  of  state  had  been  officially  informed  by  the 
Turkish  minister  on  the  ninth  of  March. 

Therefore  when  the  order  remanding  lasigi  to  the  custody  of  the 
state  officer  was  entered,  he  was  not  holding  a  consular  office,  and  the 
supposed  objection  to  his  detention  for  extradition  to  Massachusetts 
did  not  exist. 

As  under  §  761  of  the  revised  statutes  it  is  the  duty  of  the  court, 
justice  or  judge  granting  the  writ,  on  hearing,  "to  dispose  of  the 
party  as  law  and  justice  require,"  the  question  (394)  at  once  arises 
whether  the  order  of  the  district  court  dismissing  the  writ  should  be 
reversed,  and  petitioner  absolutely  discharged,  because  the  objection 
existed  when  the  writ  issued,  although  it  did  not  when  the  order  was 
entered,  even  if  such  an  objection  were  ever  tenable,  which  we  do  not 
intend  in  the  slightest  degree  to  intimate  it  could  be. 

If  the  application  for  the  writ  had  been  made  on  the  twelfth  of 
March,  it  could  not  have  been  awarded,  on  the  ground  alleged  in  this 
petition,  and  as,  on  that  day,  the  petitioner  could  not  have  been  dis- 
charged on  that  ground,  in  accordance  with  the  principles  of  law  and 
justice,  we  are  unable  to  hold  that  the  order  of  the  district  court  was 
erroneous.  Ex  parte  Royall,  117  U.  S.  241 ;  Ex  parte  Watkins,  3  Pet. 
193,  201 ;  Ex  parte  MiUigan,  4  Wall.  2,  111. 

INDIAN  CHIEF,  THE,  (1800,  Great  Britain— U.  S.) 

3  Bob.  C.  26;  2  Phillim.  (2d  Ed.)  310. 

Sir  Willuim  Scott,  High  Court  of  Admiralty. 

197 


CONSULAR  CASES 

(Extract)  I  am  first  reminded  that  he  was  American  consul,  al- 
though it  is  not  distinctly  avowed  that  (27)  his  consular  character 
is  expected  to  protect  him ;  nor  could  it  be  with  any  propriety  or  ef- 
fect, it  being  a  point  fully  established  in  these  courts,  that  the  char- 
acter of  consul  does  not  protect  that  of  merchant  united  in  the  same 
person.  It  was  so  decided  on  solenm  argument  in  the  course  of  the 
last  war.  by  the  lords,  in  the  cases  of  Mr.  Gildermester,^  the  Por- 
tuguese consul  in  Holland,  and  of  Mr.  Eykellenburg,*  Prussian 
consul  at  Flushing.  These  cases  were  again  brought  forward  to 
notice  in  the  case  of  Mr.  Fenwick,*  the  American  consul  at 
Bourdeaux  in  the  beginning  of  this  war ;  on  whose  behalf  a  distinction 
was  set  up  in  favor  of  American  consuls,  as  being  persons  not  usually 
appointed,  as  the  consuls  of  other  nations  are,  from  among  the  resi- 
dent merchants  of  the  foreign  country,  but  specially  delegated  from 
America,  and  sent  to  Europe  on  the  particular  mission,  and  continuing 
in  Europe  principally  in  a  mere  consular  character.  But  in  that 
case,  as  well  as  in  the  case  of  Sylvanus  Bourne,*  American  consul 
at  Amsterdam,  where  the  same  distinction  was  attempted,  it  was  held 
that  if  an  American  consul  did  engage  in  commerce,  there  was  no  more 
reason  for  giving  his  mercantile  character  the  benefit  of  his  official 
character,  than  existed  in  the  case  of  any  other  consul.  The  moment 
he  engaged  in  trade,  the  pretended  ground  of  any  such  distinction 
ceased;  the  whole  of  that  question  therefore  is  as  much  shut  up  and 
concluded  as  any  question  of  law  can  be. 

INFANTA,  THE,  (1848,  U.  S.) 

Abb.  Adm.  263;  Fed.  Cases  7,030. 
Beits,  District  Court. 

(268)  (Extract)  It  is  expected  that  a  foreign  seaman  seeking  to 
prosecute  an  action  of  this  description  in  the  courts  of  this  country, 
will  (269)  procure  the  official  sanction  of  the  commercial  or  political 
representative  of  the  coimtry  to  which  he  belongs ;  or  that  good  reason 
will  be  shown  for  allowing  his  suit  in  the  absence  of  such  approval. 

Upon  the  libel  of  Wood,  however,  it  appears  that  he  gives  a 
credit  to  the  exact  amount  of  his  wages,  and  upon  the  shipping  arti- 
cles there  is  endorsed  the  certificate  of  the  British  vice-consul  at  this 
port,  "that  the  master  has,  with  his  sanction,  discharged  and  paid 
off  Robert  Wood,  the  first  mate,"  dated  July  3,  1847.  If  this  evidence 
does  not  conclude  Wood  in  any  court,  it,  at  all  events,  affords  satis- 

'  Concordia,  Lords,  Feb.  5,  1782. 

'Thf?  Het  Huys  Brandenburg,  Lords,  July  16,  1784. 

'Pipnn,  Lords,  .July  18,  1797. 

'Orion,  Cushing,  Admiralty,  March  24,  1797. 

198 


CONSULAR  CASES 

factory  reasons  to  this  court  for  declining  cognizance  of  the  matter, 
and  for  remitting  him  to  the  tribunals  of  his  own  country,  where  the 
validity  and  effect  of  these  official  transactions  may  be  properly  in- 
vestigated and  determined. 

On  the  same  day,  the  vice  consul  certified  in  the  articles,  that  the 
master  "reports  the  desertion  of  George  States  and  other  seamen." 
Any  court  would  receive  with  great  distrust  any  document  or  deposi- 
tion of  the  master,  attempting  to  set  up  his  free  discharge  of  States 
from  the  ship,  anterior  to  such  official  report  that  the  seamen  had 
deserted.  It  certainly  presents  a  case  more  pertinent  to  the  juris- 
diction of  the  British  courts,  which  can  more  appropriately  measure 
the  acts  of  the  official  agent  of  their  government,  and  determine  the 
rights  of  their  own  subjects,  than  can  a  foreign  though  friendly  tri- 
bunal, which  might  fail  of  setting  a  just  appreciation  upon  the  polity 
of  her  laws  of  navigation  and  trade,  and  might  thus  unintentionally 
counteract  important  public  interests  in  attempting  to  adjudicate  upon 
the  individual  demands  of  her  subjects. 

Upon  these  considerations,  I  shall  dismiss  both  these  libels;  and 
to  protect  the  vessel  and  her  master  in  the  ports  of  the  United  States 
against  a  repetition  of  these  suits,  a  decree  for  costs  will  be  ordered 
against  the  libellants. 

Decree  accordingly, 

INVINCIBLE,  THE,  (1816,  U.  S.— France) 

1  Wheat.  238. 

Johnson,  Supreme  Court. 

[Only  mentions  that  the  French  consul  interposed  a  claim  in  be- 
half of  the  French  owners. — Ed.] 

JENKS  V.  COX,  (1872,  U.  S.) 

1  Holmes  92;  Fed.  Cases  7,277. 
Shepley,  District  Court. 

[Consul  paid  off  sailor  calculating  price  of  oil  at  Sandwich  Is- 
lands instead  of  that  at  home  port.  Court  decided  that  seaman  had  a 
right  to  recover  difference  although  discharge  was  by  mutual  consent. 
—Ed.] 

JONES  V.  IE  TOMBE,  (1798,  U.  S.— France) 

S  Dall.  384. 

Per  Curiam,  Supreme  Court. 

Capias  in  case.  This  was  an  action  brought,  originally,  in  the 
supreme  court,  by  John  Coffin  Jones,  a  citizen  of  Massachusetts,  as 

199 


CONSULAR  CASES 


indorsee  of  James  Swan,  against  the  defendant,  the  consul  general  of 
the  French  republic,  as  drawer  of  a  number  of  protested  bills  of  ex- 
change (for  the  aggregate  amount  of  385,964  livres  tumois,  3  solfl 
8  den.  equal  to  70,052  dollars  and  46  cents)  corresponding  with  the 
following  form : 

Philadelphie,  le  .  . . 

179   (T.  ■.) 


an    . . .  de  la  R^publi- 

Consulat 

que  Francaise,  une  et 

General 

indivisible. 

Prds  les  Etatv 

Unia. 

faiaant,  k  18  cents  et  15-lOOe 

cent  de  Dollar  par  livres 

toumois 

CITOYEN, 


An. 

No. 


TEOISIEME. 


A  trente  jours  de  vue,  je  vous  prie  de  payer  par  cette 
troisi^me  de  change  (la  premiere,  la  seconde  ou  la  quatrifeme 

ne  r^tant)  Sl  I'ordre  de   la  Bomme toumoii, 

en  ^cus  de  six  livres  ou  autres  esp^ces  d'or  ou  argent,  k  la 
_valeur  r^duite  de  dix-huit  cens  et  quinze  centiemes  de  cent 
de  Dollar,  par  livres  toumois,  ou  en  Lettres-de-change  sur 
Hambourg,  k  1 'acceptation  et  au  change  convenus  avec  le 
Porteur,  valeur  re^ue  de  dit,  confonn^ment  au  compti  rendu 

au  Ministre  de par  d6p§che  du an. . .  .No. . . . 

.timbr^e. .  .et  ^  ma  lettre  d'avis  en  date  de  ce  jour  No. . 

(Signfi)         Li  Tombe, 

Le  Consul  Q^n^ral 


So 


•^  1)   e    •^ 


CD 


2-  3- 


^ 


?i 


Au  Citoyen  Payeur 
G^n^ral  des  d^pensei 
du  D^partement  de.  . 

A  la  Tr^Borerie  Nationale, 
A  Paris. 

Je  prie  le  Citoyen  Ministre  de 

de  f  aire  acquitter  la  pr^sente  de  laquelle  j  'ai 
garanti  le  payment  sur  I'honneur  de  la  Nation 
Francaise. 

(Sign6)   Adet, 
Le  Ministre  Pl^nipotentiaire  de  la  R^publique 

Francaise  pr^s   les   Etats   Unis   d'Am6r- 

ique. 


(385)  At  the  opening  of  the  term,  Dallas  and  Du  Ponceau  had 
obtained  a  rule,  that  the  plaintiff  show  his  cause  of  action,  and  why  the 
defendant  should  not  be  discharged  on  filing  a  common  appearance; 
and  now  Ingersoll  and  E.  Tilghman  showed  cause,  produced  the  bills 

200 


CONSULAR  CASES 

of  exchange,  and  the  plaintiff's  positive  affidavit  of  a  subsisting  debt, 
including  a  declaration,  "that  he  was  induced,  principally,  to  pur. 
chase  the  bills,  in  consideration  of  the  character  and  private  fortune 
of  the  defendant,  and  that  without  the  fullest  confidence  in  the  per- 
sonal credit  and  responsibility  of  the  defendant,  he  verily  believed 
he  would  not  have  purchased  them."  They  then  contended,  that 
the  positive  affidavit  was  sufficient,  in  this  court,  for  holding  the  de- 
fendant to  bail ;  that  it  was  not  incumbent  on  them  to  show  to  whose 
use  the  money  was  applied,  since  it  was  paid  to  the  defendant;  that 
when  a  consul  acts  as  a  merchant,  and  draws  bills  for  cash  advanced, 
he  is  not  entitled  to  any  privilege ;  that  the  defendant  must  prove  that 
he  had  a  right  to  draw  the  bills  as  consul ;  that  even  if  he  had  the  right 
to  draw,  he  might  pledge  his  private  credit,  in  aid  of  his  official  func- 
tion; and  that  the  critical  situation  of  the  French  Republic  raises  a 
presumption,  that  the  reliance  was  placed  on  the  private  credit  of  the 
defendant.  The  cases  heretofore  decided  in  the  English  courts,  are 
perfectly  distinguishable  from  the  present  case.  1  T.  Rep.  174.  They 
occurred  between  parties  belonging  to  the  same  government ;  and  there 
was  no  proof  of  credit  being  given  to  the  individual.  In  support 
of  these  positions  were  cited,  2  H.  Bl.  554,  Vatt.  b.  4.  c.  6.  s.  74.  p. 
139.  s,  114.  2  Dall.  Rep.  247.  2.  Stra.  955. 

The  counsel  for  the  defendant  were  stopped  when  they  rose  to 
reply;  and  the  court  were  unanimously  and  clearly  of  opinion,  that 
the  contract  was  made  on  account  of  the  government ;  that  the  credit 
was  given  to  it  as  an  official  engagement;  and  that,  therefore,  there 
was  no  cause  of  action  against  the  present  defendant. 

The  rule  was,  accordingly,  made  absolute ;  and  the  plaintiff  soon 
afterwards  discontinued  the  action. 

JORDAN  V.  WILLIAMS,  (1851,  U.  S.) 

1  Curt.  69.  Fed.  Casea  7,528. 
Curtis,  Circuit  Court. 

It  is  the  duty  of  the  master  to  interpose  and  quell  an  affray  between  the  mate 
and  the  crew,  and  to  use  such  means  and  such  a  degree  of  force  as  a  competent 
master,  of  ordinary  coolness,  judging  of  the  emergency  upon  the  instant,  might 
fairly  deem  necessary.    (70) 

Under  the  act  of  congress  of  July  20,  1840,  s.  16,  the  phrase,  "to  lay  their 
complaints  before  the  consul,"  applies  only  to  such  causes  of  complaint  as  are 
specified  in  the  act,  viz.,  that  the  mariner  is  detained  contrary  to  his  agreement, 
or  that  the  vessel  is  unseaworthy,  &c.,  &c.,  and  not  to  affrays  or  quarrels  be- 
tween the  officers  and  crew. 

The  liberty  given  to  the  crew  by  said  act,  to  lay  their  complaints  before  the 
consul,  is  to  be  exercised  under  the  fair  and  reasonable  discretion  of  the  master 
of  the  vessel,  as  to  the  time  and  mode  of  landing;  and  a  refusal  of  duty  on  the 

201 


CONSULAR  CASES 

part  of  the  crexr,  because  such  permission  is  not  given,  would  be  justifiable  only 
when  such  refusal  is  necessary  to  prevent  the  loss  of  the  right. 

Since  the  passage  of  the  act  of  July  20,  1840,  when  the  master  of  a  vessel, 
in  a  foreign  port,  lays  a  complaint  against  any  of  his  crew  fully  and  fairly  be- 
fore the  consul,  and  the  complaint  is  such  that  a  competent  master  may  fairly 
believe  it  to  be  within  the  consul's  jurisdiction,  and  the  consul,  upon  examination, 
finds  it  expedient  or  necessary  to  make  use  of  the  local  authorities  to  keep  the  men 
safely,  the  master  is  not  responsible  for  their  imprisonment  as  for  a  tort,  the  con- 
sul being  answerable  to  the  injured  party  for  any  malversation  or  abuse  of  power. 

The  detention  by  the  master  of  the  clothes  of  men  imprisoned  by  the  local 
authorities  upon  request  of  the  consul,  by  reason  of  information  given  him  by  the 
master,  while  still  belonging  to  the  vessel,  and  also  after  their  discharge  there- 
from, is  a  breach  of  duty  on  the  part  of  the  master. 

These  were  libels  filed  in  the  district  court  by  Williams  and 
Gates,  two  of  the  crew  of  the  bark  Gibraltar,  against  Jordan,  the  mas- 
ter, complaining  of  an  assault  on  board  the  bark,  an  imprisonment  in 
the  jail  at  Matanzas,  and  a  conversion  of  the  clothing  of  each  libel- 
lant.  The  libellants  testified  for  each  other,  and  produced  no  other 
evidence.     The  material  facts  appear  in  the  opinion  of  the  court. 

The  case  was  argued  by  R.  H.  Dana,  for  the  appellant,  and  J. 
H.  Prince,  for  the  appellees. 

CURTIS,  J.  The  material  facts,  stated  in  the  libels  and  testified 
to  by  the  libellants  themselves,  are  that,  on  the  morning  of  the  11th 
of  April,  while  the  bark  was  lying  in  the  harbor  of  Matanzas,  the  mate 
came  forward  at  (71)  daylight  and  called  all  hands.  No  answer  was 
made  to  this  call.  The  call  was  repeated,  in  what  one  of  the  libellants 
characterizes  as  a  loud,  boisterous,  and  profane  manner.  Thereupon, 
Gates  made  answer,  "You  need  not  kick  up  such  a  noise,  for  you  were 
answered  the  second  time."  Some  insulting  words  then  passed  be- 
tween the  mate  and  Gates;  "Williams  interposed  in  the  quarrel,  the 
mate  struck  "Williams  with  his  fist,  the  blow  was  instantly  returned, 
"Williams  and  the  mate  clenched  each  other;  the  master  came  forward 
and  seized  "Williams  by  the  hair  of  the  head  and  drew  him  down  to 
the  deck,  or,  as  Williams  says,  toward  the  deck,  and,  while  he  was  in 
that  position,  the  mate  kicked  Williams  in  the  face.  Williams  cried 
out,  that  the  mate  was  kicking  him;  and  Gates  approached  and  said, 
"Knock  off  such  work  as  this!"  The  master  let  go  his  hold  of  Wil- 
liams, and  struck  Gates  twice  in  the  face.  The  contest  then  ceased; 
the  master  ordered  the  men  to  go  to  their  work,  and  both  oflScers  went 
aft.  The  answers  of  the  master  state,  that  he  knew  nothing  of  the 
affair,  being  below,  until  two  of  the  crew  came  aft,  and  called  to  him 
that  the  men  were  trying  to  kill  the  mate;  that  he  ran  on  deck,  and 
found  five  of  the  men,  who  constituted,  at  the  time,  the  whole  crew, 
except  two  men  and  a  boy,  attacking  the  mate;  that  he  rescued  the 

202 


CONSULAR  CASES 

mate  from  them,  and  in  so  doing  received  a  blow  from  Gates,  and  part 
of  his  clothing  was  torn  off  his  back.  He  denies  that  he  seized  "Wil- 
liams in  the  manner  stated,  or  that,  to  his  knowledge,  the  mate  either 
struck  or  kicked  him ;  and  he  sets  forth  in  his  answer  that,  by  reason 
of  the  lapse  of  upwards  of  a  year  between  the  termination  of  the 
voyage  and  the  filing  of  these  libels,  the  mate,  and  the  two  men  who 
were  faithful  to  their  duty,  have  gone  beyond  his  reach,  so  that  he 
can  not  produce  either  of  them  as  witnesses. 

I  do  not  deem  it  necessary,  in  this  part  of  the  case,  to  (72)  weigh 
very  nicely  the  evidence  of  the  libellants  and  the  answers  of  the  mas- 
ter, so  far  as  they  differ;  because  it  does  not  seem  to  me  that,  if  all 
which  the  libellants  testify  to  were  true,  damages  for  an  assault  by 
the  master  ought  to  be  awarded  to  either  of  these  men.  So  far  as  ap- 
pears, the  first  knowledge  which  the  master  had  of  this  contest  was 
when  he  saw  his  first  officer  and  one  of  the  crew  grappling  with  each 
other  on  the  forecastle,  four  others  of  the  crew  being  close  at  hand, 
even  if  they  were  not  taking  part  in  the  affray.  These  men  consti- 
tuted, at  that  time,  the  whole  crew,  except  two  men  and  a  boy;  and 
one  of  these  two  men  is  said  to  have  been  a  deserter  from  a  British 
ship  of  war,  who  kept  himself  concealed  in  the  daytime  in  the  hold. 
There  was  no  second  mate  on  board,  the  first  mate  having  been  dis- 
charged at  Havana,  as  appears  by  the  shipping  articles,  on  the  10th 
of  the  preceding  March;  and  though  Rooker,  the  second  mate,  was, 
on  the  same  day,  promoted  to  be  first  mate,  no  second  mate  was 
shipped :  and  it  was  not  until  the  17th  of  April  that  Reed,  one  of  the 
crew,  was  appointed  second  mate.  So  that,  when  the  master  first  saw 
this  affray  between  his  only  officer  and  one  or  more  of  the  crew,  he 
had  reason  to  believe  that  one  man  and  a  boy  were  the  only  assistants 
on  whom  he  could  rely.  That  it  was  not  only  his  right  but  his  duty 
to  interpose,  and  put  an  end  to  the  contest  immediately,  there  can  be 
no  doubt;  and  it  is  equally  clear,  that  he  was  justified  in  using  such 
means  as  a  competent  master,  of  ordinary  coolness,  judging  upon  the 
instant  of  the  facts  before  him,  might  fairly  deem  necessary.  It  should 
be  added  that,  from  the  nature  of  such  an  interposition,  if  force  be 
necessary,  the  person  thus  lawfully  using  it,  to  quell  a  fight  between 
an  officer  and  one  or  more  of  the  crew,  cannot  reasonably  be  expected 
to  measure  his  exertions  by  so  nice  a  standard  as  would  be  necessary 
if  (73)  there  were  time  for  reflection,  and  opportunity  to  proportion 
the  force  exactly  to  meet  the  demand  for  it.  Tested  by  these  princi- 
ples, I  am  not  satisfied  that  the  force  used  by  the  master  was  exces- 
sive. Interposing,  as  he  did,  to  rescue  the  mate,  it  is,  to  my  mind, 
highly  improbable  that  he  struck  Gates,  unless  Gates  was  assisting 
"Williams  in  attacking  the  mate;  for  it  appears  there  had  been  no 

203 


CONSULAR  CASES 

previous  difficulty  between  them,  and  it  was  not  an  occasion  when  the 
master  would  have  been  likely  voluntarily  to  begin  a  new  quarrel.  He 
used  no  weapon.  He  did  not  manifest  any  passion ;  and  as  soon  as  the 
mate  was  released  he  went  aft,  telling  the  men  to  go  to  work.  This 
does  not  seem  to  me  to  be  a  fit  case  in  which  to  award  damages  against 
the  master,  for  an  assault,  in  favor  of  these  libellants,  who,  accord- 
ing to  their  oym.  showing,  were  both  originally  in  the  wrong.  Not  to 
answer  when  an  order  was  given  and  heard,  and  this  order  is  admitted 
to  have  been  heard,  was  a  breach  of  discipline  which  might  well  ex- 
cite the  mate,  and  cause  him  to  repeat  the  order  with  violence  of  man- 
ner, which  they  who  had  thus  provoked  it  had  scarcely  a  right  to  com- 
plain of,  and  still  less  a  right  to  make  an  insulting  reply, — an  insult, 
perhaps  the  more  readily  given,  and  more  deeply  resented,  because  the 
mate  had  been  very  recently  promoted  to  that  office,  from  the  post 
of  second  officer,  in  which,  for  many  purposes,  he  was  scarcely  more 
than  one  of  the  crew.  It  is  true,  the  assault  by  the  mate,  if  he  struck 
the  first  blow,  was  unjustifiable ;  but  for  this  the  master,  who  denies 
all  knowledge  of  it,  and  who  is  not  proved  to  have  known  it,  cannot 
be  held  responsible ;  his  duty  being  to  put  an  end  to  the  affray,  who- 
ever began  it.  For  this  cause  of  action,  therefore,  I  can  award  no 
damages. 

The  second  ground  of  complaint  is,  that  the  master  caused  the  li- 
bellants to  be  imprisoned  on  short,  in  the  (74)  prison  of  the  local  au- 
thorities at  Matanzas.  This  is  attended  with  much  more  diffi.culty, 
and  presents  some  questions  of  general  importance,  which,  so  far  aa 
I  have  been  able  to  learn,  are  now  for  the  first  time  raised.  The  ma- 
terial facts  sworn  to  by  the  libellants,  so  far  as  they  agree  in  their 
statements,  are  these :  that,  very  soon  after  the  termination  of  the  af- 
fray above  mentioned,  and  while  the  libellants  and  three  others  of 
the  crew  were  engaged  in  removing  the  main  hatch,  the  mate  said  to 
them,  with  an  insulting  address,  "I  will  knock  your  brains  out  with 
a  handspike."  Williams  then  said  to  the  master,  "Captain  Jordan, 
do  you  hear  that?"  And  he  replied,  with  an  oath,  **I  do  hear  it." 
"Williams  then  said  to  the  master,  "I  will  do  no  more  duty  on  board 
this  ship  until  I  see  the  consul."  Gates  and  the  other  three  men  said 
the  same ;  and  all  five  left  their  work  and  went  forward  into  the  fore- 
castle. The  mate  came  to  the  forecastle  door,  and  said  to  Williams, 
"Williams,  are  you  going  to  turn  to?"  The  reply  was,  "No,  not  imtil 
I  have  seen  the  consul."  The  mate  told  him  he  was  a  fool,  and  he 
had  better  think  no  more  about  it.  The  master  then  came  forward, 
and  asked  each  man  if  he  was  going  to  turn  to.  Each  said  no,  until 
he  should  see  the  consul.  The  master  replied,  with  an  oath,  that  they 
should  go  in  the  ship,  and  that  they  would  wish  themselves  in  heU 

204 


CONSULAE  CASES 

before  the  voyage  was  up.  He  soon  after  went  on  shore,  returned  with 
two  boats  and  armed  men,  who  carried  the  men  on  shore  and  took  them 
to  prison.  On  the  next  day,  or  the  next  day  but  one,  the  consul  came 
to  the  prison ;  they  informed  him  of  what  had  taken  place,  and  he  said 
he  would  see  into  it.  In  a  few  days  he  returned,  the  master  being 
with  him,  and  asked  the  men  if  they  did  not  think  they  had  better  set- 
tle it,  and  go  aboard  of  the  ship  again,  and  he  repeated  the  question 
to  each  man.  All  but  one  replied,  that  they  were  afraid  of  their  (75) 
lives,  after  the  threats  that  were  made ;  and  that  one  said  he  would  go, 
if  the  consul  would  give  him  a  paper  showing  what  had  happened  on 
board.  This  the  consul  refused,  A  few  days  afterwards,  the  master 
came  again  to  the  jail,  asked  if  they  were  not  tired  of  staying  there ; 
and  said  he  had  paid  three  months'  board,  and  there  might  be  enough 
for  another  month.  He  went  away ;  and,  on  the  8th  of  May,  the  consul 
took  them  out  of  jail  and  sent  them  to  the  United  States.  This  is  the 
account  given  by  the  libellants  themselves.  In  some  material  points  it 
is  directly  met  by  the  answer,  and  is  not  consistent  with  the  cer- 
tificate of  the  consul,  which  has  been  read  as  evidence  by  agreement, 
as  a  substitute  for  the  consul's  deposition,  who,  it  is  stated,  has  ceased 
to  hold  that  office,  and  could  not  be  found  by  the  respondent.  I  shall 
hereafter  advert  to  some  of  these  discrepancies ;  but,  before  doing  so, 
I  must  inquire  whether  the  men  were  justified  in  their  refusal  to  do 
any  more  duty  on  board  until  they  could  see  the  consul.  This  right 
is  claimed  under  the  16th  clause  of  the  act  of  July  20th,  1840,  which 
is  in  these  words :  ' '  The  crew  of  any  vessel  shall  have  the  fullest  liberty 
to  lay  their  complaints  before  the  consul  or  commercial  agent  in  any 
foreign  port,  and  shall  in  no  respect  be  restrained  or  hindered  therein 
by  the  master  or  any  officer,  unless  some  sufficient  and  valid  objection 
exist  against  their  landing ;  in  which  case,  if  any  mariner  desire  to  see 
the  consul  or  commercial  agent,  it  shall  be  the  duty  of  the  master  to 
acquaint  him  with  it  forthwith,  stating  the  reason  why  the  mariner  is 
not  permitted  to  land,  and  that  he  is  desired  to  come  on  board ;  where- 
upon, it  shall  be  the  duty  of  such  consul  or  commercial  agent  to  repair 
on  board  and  inquire  into  the  causes  of  the  complaint,  and  to  proceed 
thereon  as  the  act  directs. ' '  This  does  not,  in  terms,  give  to  the  crew 
the  right  to  refuse  to  do  duty  imtil  they  can  see  the  con-(76)sul.  It 
may  fairly  be  implied,  that  they  are  not  bound  to  do  such  duty  as 
would  prevent  the  exercise  of  the  right  to  see  him.  They  cannot  be 
lawfully  required  to  get  under  weigh  to  go  to  sea,  and  thus  be  de- 
prived of  the  right  to  lay  before  him  their  complaint  of  the  unsea- 
worthy  condition  of  the  vessel ;  they  cannot  properly  be  kept  at  work, 
and  thus  prevented  from  landing  to  lay  their  complaint  before  him, 
imless  some  sufficient  and  valid  objection  exists  against  their  landing. 

205 


CONSULAR  CASES 

But  it  by  no  means  follows  that  they  have  the  right,  at  any  moment, 
to  refuse  to  do  any  duty  whatever  till  they  have  seen  him.  The  mas- 
ter is  to  allow  them  the  fullest  liberty  to  lay  their  complaints  before 
the  consul ;  but  the  exercise  of  the  fullest  liberty  to  do  so,  when  inter- 
preted reasonably,  is  consistent  with  the  master's  being  allowed 
fairly  to  exercise  some  discretion  as  to  the  time  and  mode  of  landing, 
and  as  to  the  prosecution  of  the  work  of  the  ship.  Certainly,  the  re- 
fusal of  the  crew  to  obey  the  orders  of  the  master  is  not  the  first 
step  to  be  taken,  on  the  instant,  when  this  right  to  see  the  consul 
is  claimed.  Such  a  refusal  may  be  justifiable,  when  absolutely  nec- 
essarj'  to  prevent  the  loss  of  the  right;  but  I  think  very  bad  conse- 
quences would  follow  from  admitting  that  anything  else  would 
justify  it.  As  long  as  the  obligations  of  the  master,  to  allow  the 
crew  to  lay  their  complaints  before  the  consul,  and  of  the  crew  to 
obey  his  orders  and  do  their  duty  on  board,  can  be  reconciled,  they 
must  be ;  and  I  see  nothing  in  this  case  which  made  the  latter  incon- 
sistent with  the  former. 

But,  in  my  judgment,  the  claim  of  the  crew  to  see  the  consul, 
and  their  refusal  to  do  duty  until  they  should  see  him,  cannot  be 
supported  by  this  act,  because  their  complaint  was  not  one  which  the 
act  was  designed  to  enable  them  to  lay  before  him. 

It  can  hardly  be  supposed  that  congress  intended  to  (77)  se- 
cure to  the  crew  the  fullest  liberty  to  apply  to  the  consul  concerning 
any  matter  or  thing,  which  they  or  any  of  them  might  desire  to  com. 
plain.  Some  practical  result  of  such  complaint,  by  means  of  some 
jurisdiction  of  the  consul  over  its  subject  matter,  must  be  considered 
to  have  been  the  purpose  of  this  provision  of  the  act. 

To  secure  the  crew  the  right  to  land,  or  to  impose  on  the  consul 
the  duty  of  immediately  repairing  on  board,  merely  that  he  might 
hear  and  do  nothing,  because  he  had  no  power  to  do  anything,  cannot 
have  been  intended.  Nor  is  any  such  intent  indicated  by  the  lang- 
uage of  this  law.  It  says,  "to  lay  their  complaints  before  the  consul," 
etc.  What  complaints?  This  question  is  answered  by  the  act,  which 
provides,  in  clause  nine,  for  a  complaint  by  a  mariner  to  a  consul, 
that  he  is  detained  contrary  to  his  agreement,  or  after  he  has  ful- 
filled it,  and  which  directs  how  the  consul  is  to  inquire  into  the  truth 
of  the  complaint,  and  what  he  may  do  if  he  finds  it  well  founded; 
and  by  clauses  twelve  to  fifteen,  inclusive,  which  authorize  a  com- 
plaint to  the  consul  concerning  the  seaworthiness  of  the  vessel,  and 
point  out  what  proceedings  shall  be  had,  and  what  jurisdiction  shall 
be  exercised  by  the  consul  upon  such  complaint.  When,  therefore, 
the  next  clause  says  the  crew  shall  have  the  fullest  liberty  to  lay 
their  complaints  before  the  consul,  the  natural  meaning  is,  the  com- 

206 


CONSULAR  CASES 

plaints  which,  by  this  act,  they  are  authorized  to  make,  and  he  re- 
quired to  hear;  and  this  meaning  is  made  quite  plain  by  the  con- 
cluding words  of  this  clause,  which  require  the  consul  (in  case  the 
crew  cannot  land)  to  repair  on  board,  and  "inquire  into  the  causes 
of  the  complaint,  and  proceed  thereon  as  this  act  directs."  If  he  is 
to  do  this  when  he  goes  to  them,  I  presume  he  is  to  do  the  same  when 
they  come  to  him;  and,  if  so,  it  necessarily  follows,  that  the  com- 
plaints which  they  have,  by  this  act,  a  right  to  lay  (78)  before  him, 
are  complaints  upon  which  the  consul  can  "proceed"  as  this  act  di- 
rects. Not  that  they  must  be  well  founded,  in  part  or  in  whole,  but 
that  their  subject  matter  must  be  such  that,  if  well  founded,  the  con- 
sul, by  this  act,  has  authority  to  proceed  thereon. 

Now  I  do  not  fmd  in  this  act,  or  elsewhere,  that  power  is  con- 
fered  on  a  consul  of  the  United  States  to  take  cognizance  of  a  com- 
plaint by  a  part  of  the  crew,  that  the  mate  had  threatened  to  beat 
out  their  brains  with  a  hand  spike,  followed  by  an  appeal  by  the  mate 
to  the  principal  party  in  the  quarrel,  desiring  him  to  think  no  more 
about  it ;  or,  to  state  it  more  abstractly,  I  do  not  find  that  a  consul  has 
power,  upon  the  application  of  the  crew,  to  inquire  into  quarrels 
of  this  nature.  The  only  approach  towards  such  a  case  is  in  the 
seventeenth  clause  of  the  act,  which  is  in  the  following  words:  "In 
all  cases  where  deserters  are  apprehended,  the  consul  or  commercial 
agent  shall  inquire  into  the  facts;  and,  if  satisfied  that  the  desertion 
was  caused  by  unusual  or  cruel  treatment,  the  mariner  shall  be  dis- 
charged," etc.  It  is  to  be  born  in  mind  that  this  Is  a  new  power, 
conferred  on  the  consul  for  the  first  time;  that  it  is  a  power  to  dis- 
solve a  contract,  or  rather,  authoritatively  and  finally  to  declare  that 
it  has  been  so  far  broken  by  one  party  that  the  other  party  is  no  long- 
er under  obligation  to  perform  it ;  that  this  is  a  very  high  power,  and, 
consequently,  is  not  to  be  extended  to  a  case  not  fairly  within  the 
words  of  the  act,  which  apply  only  to  a  particular  class  of  cases,  where 
deserters  are  apprehended,  and  the  desertion  was  caused  by  unusual 
or  cruel  treatment;  and  fall  far  short  of  cases  like  this,  where,  at 
the  worst,  only  threats  have  been  uttered. 

I  am  clear,  therefore,  that  the  refusal  of  the  men  to  do  duty  can 
find  no  justification  in  this  act;  that  this  reference,  especially  after 
the  mate  had  asked  the  principal  (79)  party  to  the  quarrel  to  think 
no  more  about  it,  is  strong  evidence  of  an  insubordinate  temper,  and 
justified  the  master  in  applying  to  the  consul.  That  he  did  so 
apply,  I  am  satisfied ;  his  answer  so  states ;  and  though  an  answer  has 
no  technical  effect  as  evidence,  it  is  not  wholly  without  weight  in  con- 
sidering his  conduct.  There  is  nothing  in  the  case  tending  to  con- 
tradict this  allegation  in  the  answer,  and  the  certificate  of  the  con- 

207 


CONSULAK  CASES 

8ul,  which  is  made  evidence  in  the  case,  proves  such  application  to 
him.  Being  satisfied,  then,  that  the  master  did  apply  to  the 
consul,  and  that  he  had,  in  point  of  fact,  a  case  to  lay  before  him,  in 
which  five  out  of  seven  of  his  crew,  after  a  fight  between  one  or  more 
of  them  and  the  mate,  had  unjustifiably  refused  to  do  duty  on  board, 
I  do  not  think  it  reasonable  to  doubt  that  he  did  lay  this  ease  before 
him,  as  he  swears  in  his  answer,  especially  when  the  consul  certifies 
that  on  that  day  he  acted  officially,  on  the  very  ground  that  these  men 
had  refused  to  do  duty  on  board.  Nor  can  I  come  to  any  other  con- 
clusion than  that  the  interposition  of  the  local  authorities  was  by  the 
procurement  of  the  consul.  It  is  true  the  men  both  testify  that  the 
consul  did  not  see  them  on  that  day ;  but  so  far  as  this  tends  to  show 
that  the  consul  did  not  interpose  at  all  on  that  day,  it  is  directly 
met  by  the  answer,  which  says  that  the  consul  himself  sent  the  of- 
ficer, who  removed  the  men  from  the  vessel,  and  the  consul's  certi- 
ficate declares,  in  so  many  words,  that  he  ordered  the  men  to  be  im- 
prisoned for  safe  keeping,  in  the  Royal  Prison.  I  must  consider  the 
imprisonment  of  these  men,  therefore,  as  an  act  of  the  local  author- 
ities, done  upon  the  request  of  the  consul,  by  reason  of  information 
given  him  by  the  master,  that  the  men  had  unlawfully  refused  to  do 
duty  on  board.  And  the  question  is,  whether  the  master  is  responsi- 
ble for  their  imprisonment,  as  for  a  tort.  Prior  to  the  Act  of  Con- 
gress of  the  20th  (80)  July,  1840,.  it  had  repeatedly  been  decided,^ 
that  a  master  could  not  lawfully  imprison  a  seaman  on  shore,  unless 
he  were  unable  to  restrain  him  on  board ;  that  a  case  of  urgent  neces- 
sity must  be  made  out ;  and  that,  although  it  would  be  a  mark  of  good 
faith,  on  the  part  of  the  master,  to  take  the  advice  of  a  consul,  as 
being  a  person  confided  in  by  the  government,  for  many  purposes, 
yet  such  advice  would  not  be  otherwise  operative  to  protect  the  mas- 
ter, because  consuls  had  no  power  or  duty  in  reference  to  the  matter. 
I  am  satisfied  of  the  correctness  of  these  decisions,  but  I  think  the 
Act  of  1 840  has  materially  changed  the  relation  of  consuls  to  this  sub- 
ject. The  eleventh  clause  of  the  Act  is  as  follows:  "It  shall  be  the 
duty  of  consuls  and  commercial  agents  to  reclaim  deserters,  and  dis- 
countenance insubordination  by  every  means  within  their  power;  and 
where  the  local  authorities  can  be  usefully  employed  for  that  pur- 
pose, to  lend  their  aid,  and  use  their  exertions  to  that  end,  in  the 
most  effectual  manner."  This  certainly  confers  on  consuls  authority, 
and  in  strong  terms  makes  it  their  duty,  to  employ  the  local  author- 
ities, to  discountenance  insubordination,  where  they  can  be  usefully 

*  United  States  v.  Ruggles,  5  Mason,  R.  192;  Jay  v.  Almy,  1  W.  &  M. 
B.  262;  Wilson  v.  Brig  Mary,  Gilpin,  R.  31;  Magee  v.  Ship  Moss,  Gilpin,  R.  219; 
The  Nimrod,  Ware,  R.  9;  The  D.  Patt,  Ware,  R.  503. 

208 


CONSULAR  CASES 

employed  for  that  purpose;  and,  by  a  necessary  implication,  the 
consul  must  judge  and  determine,  whether  any  particular  case  is  one 
in  which  they  may  usefully  be  employed.  Certainly  his  decision  is 
not  final.  If  he  is  guilty  of  any  malversation,  or  abuse  of  power,  the 
eighteenth  clause  of  this  Act  makes  him  liable  to  any  injured  person 
for  all  damage  occasioned  thereby,  as  well  as  to  be  punished  criminally. 
But  I  think  it  was  (81)  the  intention  of  the  Act  to  intrust  him  with 
power  officially  to  invoke  the  aid  of  the  local  authorities,  subject  al- 
ways to  a  just  responsibility  for  any  abuse  of  this  power.  If  the 
local  authorities  are  to  be  used,  it  is  a  reasonable  not  to  say  neces- 
sary inference,  that  they  are  to  act  in  such  manner,  and  by  such  means 
as  they  ordinarily  employ;  and  the  most  common  and  obvious  means 
are  the  use  of  a  place  of  confinement,  under  the  control  of  the  local 
government.  The  power,  in  the  most  effectual  manner  to  lend  their 
aid,  and  use  their  exertions  to  employ  the  local  authorities  to  dis- 
countenance insubordination,  can  hardly  be  said  to  be  exhausted, 
while  the  means  most  usually  employed  by  those  authorities  have  not 
been  used.  I  think,  therefore,  that  this  Act  conferred  upon  consuls 
the  power,  and  made  it  their  duty,  where  the  local  authorities  can,  in 
their  judgment,  fairly  exercised,  be  usefuUy  employed  to  restrain 
a  part,  or  the  whole,  of  a  crew,  who  are  in  a  state  of  insubordination, 
to  use  their  exertions  to  that  end,  in  the  most  effectual  manner,  and 
that  this  restraint  may  be  exercised  by  confiaiement  on  shore,  in  such 
place  as  is  ordinarily  used  by  the  local  authorities  for  similar  pur- 
poses. And  further,  that  the  consul,  in  so  doing,  acts  as  a  public 
officer,  upon  his  official  responsibility,  intrusted  with  the  power  to 
judge  in  the  first  instance,  of  the  propriety  and  fitness  of  so  doing, 
and  subject  to  his  responsibility  to  any  injured  by  an  abuse  of  his 
power. 

The  reasons  which  have  led  courts  to  determine  that  it  was  not 
one  of  the  ordinary  powers  of  a  master  to  imprison  his  men  on 
shore,  do  not  exist,  or  apply  with  greatly  diminished  force,  to  the 
action  of  a  consul  in  that  behalf,  on  the  information  of  the  master.  A 
public  officer  is  thus  interposed  between  the  master  and  the  seaman, 
who  is  to  act  under  his  official  responsibility  to  the  government,  whose 
servant  he  is,  as  well  as  to  the  party  who  is  affected  (82)  by  his  act; 
he  is  a  resident  at  the  place,  and  cannot  sail  away,  and  leave  the  man 
to  suffer  or  die  in  a  foreign  prison.  He  is  intrusted  by  law  with 
the  care  of  destitute  seamen,  and  with  their  return  to  their  own 
country.  It  is  to  be  presumed  that  he  will  have  a  due  regard  to  the 
safety  and  rights  of  all,  and,  while  he  discountenances  insubordina- 
tion, by  every  means  in  his  power,  that  he  will  not  employ  the  local 
authorities  in  a  way  to  oppress  the  seamen  of  the  United  States,  But 

209 


CONSULAR  CASES 

whatever  may  have  been  the  reasons  which  operated  to  produce  this 
law,  I  think  it  has  conferred  on  consuls  the  power  above  described. 
If  this  be  so,  it  is  quite  clear  that  the  responsibility  of  the  master 
is  modified.  If  the  consul  may  judge  when  the  local  authorities  may 
usefully  be  employed,  it  would  be  a  great  hardship  to  hold  the  mas- 
ter responsibile  for  a  mere  error  of  judgment  of  a  public  ofiicer,  in 
whose  appointment  he  had  no  voice,  and  who  is  in  no  just  sense  his 
agent.  At  the  same  time,  if  the  consul  acts  on  the  application  of  the 
master,  the  master  is  not  free  from  responsibility.  In  the  first  place, 
he  is  bound  to  represent  the  case  truly  to  the  consul,  and,  in  the  next 
place,  the  case  must  be  such  that  he,  as  a  reasonable  man,  can  hon- 
estly believe  it  to  be  within  the  power  of  the  consul.  If  he  knows,  or 
ought  to  know,  that  it  is  not  a  case  in  which  the  local  authorities 
should  be  appealed  to,  or  in  the  words  of  the  act,  in  which  they  can 
be  usefully  employed,  then  he  necessarily  knows  that  the  case  is  not 
within  the  limited  power  of  the  consul,  and  that,  consequently,  he 
cannot  shelter  himself  under  his  authority.  But  if  the  master  repre- 
sents the  facts  truly, — if  the  facts  are  such  that  a  competent  master 
might  well  believe  that  the  local  authorities  might  be  usefully  em- 
ployed, and  the  consul  so  considers,  and  applies  to  them,  and  they,  at 
the  consul's  request,  take  the  men  on  shore,  and  there  confine  them, 
in  the  place  and  manner  usual  at  (83)  such  port,  I  think  the  master 
is  not  guilty  of  any  tort,  although,  upon  a  review  of  all  the  facts, 
the  court  might  be  of  the  opinion,  that  it  was  not  strictly  necessary  to 
remove  the  men  from  the  ship. 

Applying  these  views  to  this  case,  I  find  no  evidence  that  the 
master  misrepresented  the  facts  to  the  consul,  and  I  am  not  able  to 
come  to  the  conclusion  that  the  case  was  of  such  a  nature  that  the 
master  ought  to  have  known  that  the  local  authorities  could  not  use- 
fully be  employed  in  the  way  they  were  employed.  Five  out  of  seven 
of  his  crew  had  unlawfully  refused  to  do  duty ;  they  had  been  appealed 
to  by  the  mate,  who  alone  had  given  them  any  cause  of  complaint,  in 
a  manner  calculated  to  allay  any  apprehensions  which  they  might  have 
entertained,  but  they  still  refused.  Each  had  been  required,  by  the 
master,  to  return  to  his  duty,  and  each  had  distinctly  refused. 

The  deserter  who  was  on  board  could  hardly  be  relied  on  for  any 
very  effectual  assistance,  and  one  officer,  and  one  man,  and  a  boy, 
were  all  that  were  left;  under  these  circumstances,  some  masters 
might,  and  probably  would,  have  reduced  these  men  to  obedience,  on 
board  the  ship;  but  I  cannot  say  that  it  was  a  case  where  the  master 
ought  to  have  known  that  that  was  the  only  proper  course,  and  there- 
fore I  am  of  the  opinion  that  the  master  is  not  responsible  for  a  tort 
by  reason  of  their  imTjjrisonment.     Nor  do  I  think  he  incurred  that 

210 


CONSULAR  CASES 

responsibility  by  their  remaining  in  prison.  It  is  quite  clear  that  he 
was  anxious  to  have  them  return  to  their  duty,  and  gave  them  early 
and  repeated  opportunities  to  do  so.  They  steadily  refused,  alleging 
that  they  were  afraid  for  their  lives,  if  they  should  return  on  board. 
If  five  able-bodied  men  really  had  such  fear  of  the  master  and  mate, 
who  alone  had  shown  any  disposition  to  injure  them,  simply  be- 
cause of  some  threats  uttered  in  the  heat  of  blood,  it  seems  to  me 
to  have  been  an  (84)  unreasonable  fear.  It  is  observable  that  neither 
of  the  libellants  asserts,  in  his  libel  or  his  testimony,  that  he  did 
really  entertain  such  fear.  Their  justification  for  their  refusal  to 
return  to  the  ship  resting  solely  on  this  fear,  I  think  they  should  have 
pleaded  it  as  a  fact,  and  sworn  to  it  as  a  fact,  and  not  allowed  it  to 
rest  solely  on  their  statements  at  the  time,  which  do  not  seem  to  have 
had  a  reasonable  foundation  in  the  occurrences  as  they  detail  them. 

After  they  had  been  in  prison  some  days,  the  answer  says  eight 
days,  and  after  repeated  refusals  to  go  on  board,  or  do  any  duty  if 
forced  on  board,  the  consul  discharged  them  from  the  vessel,  the 
master  shipped  other  men  in  their  place,  paid  to  consul  fifty  dollars 
for  their  passage  money  to  the  United  States,  and  one  hundred  dol- 
lars more  for  expenses  arising  out  of  their  arrest,  and  board  in  prison, 
and  from  that  time  the  answer  avers  that  the  master  had  no  control 
over,  or  connection  with  them,  and  that  whatever  was  done,  was  by 
the  consul  alone.  The  Act  of  1840  empowers  consuls,  upon  the  ap- 
plication of  the  master  and  any  mariner,  to  discharge  such  mariner, 
if  he  thinks  it  expedient,  without  requiring  the  payment  of  three 
months'  wages,  I  do  not  understand,  from  any  of  the  proofs,  that 
these  men  applied  in  terms  for  their  discharge ;  but  I  think  their  un- 
justifiable refusal  to  go  on  board,  or  do  any  duty  if  forced  on  board, 
would  enable  the  consul  to  act  upon  the  request  of 'the  master,  and 
discharge  them,  and  the  men  themselves  evidently  considered  that 
they  had  in  effect  requested  their  discharge,  for  they  have  made  no 
claim  to  be  paid  any  wages.  After  they  were  thus  discharged,  I  con- 
sider the  consul,  and  not  the  master,  responsible  for  their  further 
detention.  They  no  longer  formed  part  of  his  crew;  he  no  longer 
sustained  any  relation  to  them.  The  answer  declares  he  did  noth- 
ing to  cause  their  further  detention,  and  there  is  not  sufficient  proof 
to  the  contrary. 

(85)  I  am  of  opinion,  therefore,  that  the  responsibility  for 
their  futher  detention  must  rest  with  the  consul  by  whose  orders  they 
were  originally  put  in  prison,  and  at  whose  sole  instance  they  were 
kept  there,  after  they  were  discharged  from  the  bark.  The  answer 
states,  that  the  consul  said  something  to  the  master  about  sending 
them  home  to  be  tried;  and  if  he  considered  it  his  duty  to  detain 

211 


CONSULAR  CASES 

them,  by  aid  of  the  local  authorities,  that  he  might  send  them  to 
the  United  States  for  that  purpose,  his  conduct  might  be  justified. 
On  any  other  ground  it  was  grossly  improper;  for  he  had  no  right 
to  punish  them  by  imprisonment;  and  surely,  destitute  seamen  are 
not  to  be  provided  for  by  a  consul  by  keeping  them  in  a  foreign 
jail. 

There  is  one  other  cause  of  action  set  forth  in  these  libels,  which 
requires  to  be  distinctly  considered.  It  is,  that  the  men  were  sent  to 
the  jail  without  any  clothing  or  bedding,  which  was  detained  on  board 
the  bark,  and  finally  sold  by  the  master.  It  is  in  proof,  that  the  libel- 
lants  slept  on  the  flagstones,  using  their  boots  for  pillows;  and  that, 
during  all  the  time  they  were  in  prison,  they  had  no  clothes  except 
the  working  dress  in  which  each  was  when  taken  on  shore.  This  de- 
tention of  their  clothing  is  not  justified;  and  no  excuse  is  attempted, 
except  that  the  answer  alleges  that  the  consul  told  the  master  their 
clothing  was  forfeited.  But  it  does  not  appear  when  this  information 
was  given,  and  it  is  difficult  to  see  how  it  could  have  been  supposed 
to  be  correct.  Before  the  men  had  finally  refused  to  return  on 
board,  and  while  it  was  yet  uncertain  whether  they  would  return, 
there  could  be  no  pretence  for  treating  them  as  deserters;  and  when 
it  became  certain  that  they  would  not  voluntarily  return,  they  were 
regularly  discharged,  and  desertion  became  impossible.  I  consider 
it  to  have  been  a  breach  of  duty  by  the  master,  and  a  wrong  to 
these  men  of  a  somewhat  aggravated  character,  to  detain  all  their 
(86)  clothing  from  them  during  eight  days,  and  then  sail  away  and 
finally  deprive  them  of  it.  I  shall  therefore  allow  to  each  the  pecu- 
niary value  of  his  clothing,  together  with  the  sum  of  eight  dollars,  for 
special  damages,  arising  from  its  detention  while  in  prison.  From 
analogy  to  the  rule  followed  by  Judge  Hopkinson,  in  the  case  of 
The  Maiden,  Gilpin's  R.  294,  I  should  deduct  a  proportional  part  of 
the  prison  fees  and  expenses  and  the  cost  of  shipping  the  new  men, 
if  I  did  not  consider  that  the  wages  remaining  unpaid  to  each  of  these 
men  at  the  time  of  their  discharge  was  just  about  a  fair  compensation 
for  their  proportions  of  these  charges;  and  it  seems  to  me  that,  under 
the  circum.stances,  it  is  just  that  the  ship  should  neither  lose  nor 
gain  by  their  discharge.  It  is  not  easy  to  affix  a  value  to  the  cloth- 
ing of  each  libellant.  It  is  sworn  to  be  worth  from  eighty  to  one 
himdred  dollars  for  each;  and  the  answer  puts  it  at  very  much  less 
sums.  Upon  the  best  judgment  which  I  can  form,  I  think  the  sura 
of  forty-eight  dollars  will  be  a  just  allowance  for  the  clothing  and 
the  special  damage  of  each.  This  sum  is  therefore  awarded  to  each 
libellant.  I  do  not  allow  any  costs  of  the  appeal  to  either  party. 
The  decree  of  the  court  below  will  be  modified  accordingly. 

212 


CONSULAR  CASES 

I  desire  to  add,  that  it  is  stated  at  the  bar,  that  the  evidence  upon 
which  the  appeal  has  been  heard  is  not  identically  the  same  as  in  the 
district  court ;  and  that  several  of  the  questions  which  have  now  been 
decided  were  not  there  raised. 

JOSEPHINE,  THE,   (1801,  Great  Britain— U.  S.) 

4  Eob.  C.  25. 

Sir  William  Scott,  High  Court  of  Admiralty. 

(26)  (Extract)  These  instructions,  it  seems,  were  not  liter- 
ally executed  on  the  part  of  Mr.  Gelston.  He  though  it  better  on  ac- 
count of  his  own  inexperience,  to  apply  to  Mr.  Shipwith,  who  was  the 
American  consul  at  Paris;  but  who  is  to  be  taken  nevertheless  as  a 
French  merchant  in  such  a  transaction;  since  there  can  be  no  doubt, 
that,  notwithstanding  his  consular  character,  he  is  to  be  considered 
in  all  commercial  transactions  on  the  same  footing  as  any  other  resi- 
dent merchant  in  France,  to  whose  experience  and  prudence  Mr.  Gels- 
ton  might  apply,  for  counsel  and  assistance  in  the  management  of 
this  cargo. 

KAINE,  IN  RE,  (1852,  U.  S.— Great  Britain) 

14  How.  112. 

Catron,  Supreme  Court. 

[Speaks  of  Robbin's  case  in  which  the  judge  at  the  president's 
direction  ordered  as  follows:  "I  do  therefore  order  and  command 
the  marshal,  in  whose  custody  the  prisoner  now  is,  to  deliver  the  body 
of  said  Nathan  Robbins,  alias  Thomas  Nash,  to  the  British  consul, 
or  such  person  or  persons  as  he  shall  appoint  to  receive  him." 

Justice  Nelson  discusses  the  inconvenience  of  allowing  such  ex- 
tended rights  to  consuls  and  subordinate  officials,  J.  Taney  con- 
curred with  his  (Nelson's)  opinion. — Ed.] 

(136)  (Extract)  In  the  case  before  us,  her  Britannic  majesty's 
consul  at  the  port  of  New  York  made  a  requisition  and  complaint,  be- 
fore one  of  the  United  States  commissioners,  against  the  fugitive  in 
question — upon  which,  a  warrant  was  issued  and  the  arrest  made, 
and,  after  an  examination  into  the  charge,  committed,  for  the  purpose 
of  being  surrendered.  No  demand  was  made  upon  this  government, 
by  the  government  of  Great  Britain,  claiming  the  surrender.  This 
government  was  passed  by  ,  and  the  requisition  made  by  the  consul, 
directly  upon  the  magistrate,  on  the  ground,  as  contended  for,  name- 
ly, that  the  consent  or  authority  of  the  executive  is  unnecessary  to 
warrant  the  institution  of  the  proceedings;  and  in  support  of  their 
propriety  and  regularity,  the  position  is  broadly  taken,  and  without 

213 


CONSULAR  CASES 

which  the  proceedings  cannot  be  upheld,  that,  according  to  the  true 
interpretation  of  the  treaty,  any  officer  of  Great  Britain,  however 
inferior,  properly  represents  the  sovereign  of  that  country,  who  may 
choose  to  prosecute  the  alleged  fugitive  in  making  the  requisition, 
and  is  entitled  to  the  obedience  of  the  judicial  tribunals  for  that  pur- 
pose, and  if  sufficient  evidence  is  produced  before  them,  to  arrest  and 
commit,  that  a  surrender  may  bo  made ;  and,  that  in  this  respect, 
such  officer  is  put  on  the  footing  of  any  of  the  prosecuting  officers  oi 
this  government,  who  are  (137)  authorized  to  institute  criminal  pro- 
ceedings for  a  violation  of  its  laws;  that  the  country  is  open  to  him, 
throughout  the  limits  of  the  Union,  and  the  judicial  tribunals  bound 
to  obedience  on  his  requisition  and  proofs,  to  make  the  arrest  and 
commitment.  This  is  the  argument.  Now,  upon  recurring  to  the 
terms  of  the  treaty  it  will  be  seen,  I  think,  that  no  such  stipulations 
were  entered  into,  or  intended  to  be  entered  into,  by  either  govern- 
ment, or  any  authority  conferred  to  justify  such  a  proceeding, 

KAMMERHEVIE  v.  ROSENKRANTS,  (1822,  Great  Britain— Sweden) 

1  Hag.  Adm.  62. 

Lord  Stoivell,  High  Court  of  Admiralty. 

[Question  of  payment  of  wages  by  holders  of  a  bottomry  bond. 

"Upon  affidavit,  with  a  schedule  of  wages  due  to  the  crew,  and 
with  the  consent  of  the  master,  and  a  certificate  of  the  Swedish  con- 
sul annexed." — Ed.] 

KELLY  V.  THE  TOPSY,  see  The  Topsy. 

KENNEY  V.  BLAKE,  (1903,  U.  S.) 
125  Fed.  K€p.  672. 
Morrow,  Circuit  Court. 

[Affirms  The  Troop  117  Fed.  Rep.  577,— Ed.] 
KENT  V.  BURGESS,  (1841,  Great  Britain) 

r,  .Jur.  ICifi;  XI  Simons  361. 

Vice-Chancellor,  Vice-Chancellor's  Court. 

[Marriage  made  by  protestant  clergyman — seems  to  involve  no 
consular  question.     Marriage  was  made  in  presence  of  consul. — Ed.] 

KESSLER  V.  BEST,  (1903,  U.  S.— Germany) 

121   Fed.  Rep.  439. 

Lacombe,  Circuit  Court. 

(439),     (Extract)     Motion  to  compel  a  witness  to  answer  cross- 

214 


CONSULAR  CASES 

questions.  He  is  being  examined  here  under  section  863  (U.  S. 
Comp.  St.  1901,  p.  661)  ;  the  action — for  libel — being  at  issue  in  the 
United  States  circuit  court  for  the  Eastern  District  of  Wisconsin. 

Herbert  R.  Limburger,  for  the  motion. 
Jno.  Brooks  Leavitt,  opposed. 

LACOMBE,  Circuit  Judge.  The  witness  claims  that  the  docu- 
ments about  which  he  is  interrogated  are  part  of  the  archives  of  the 
German  consulate,  and  therefore  privileged.  The  objection  is  well 
taken,  but  defendant  cannot  be  allowed  to  retain  so  much  of  the 
direct  examination  as  deals  with  these  same  documents.  The  passages 
marked  in  blue  are  therefore  stricken  out  of  the  direct.  It  is  difficult 
to  understand  upon  what  theory  the  rest  of  the  direct  could  be  admit- 
ted, except,  perhaps,  to  the  extent  that  witness  put  stamps  on  four 
bottles  of  wine,  and  delivered  them  to  the  shipbuilding  company. 
Conversations  between  Dingwell  and  Downey  on  the  one  side,  and  the 
secretary  of  the  German  consulate  on  the  other,  at  which  plaintiff  was 
not  present,  seem  to  be  manifestly  incompetent  against  him.  How- 
ever, that  is  a  question  to  be  settled  by  the  trial  court.  This  court 
deals  only  with  the  question  of  privilege. 

(January  10,  1903.) 

Memorandum  on  settlement  of  order  sustaining  the  refusal  of  the 
witness  Theodore  Jakel  to  answer  certain  questions,  and  directing  that 
certain  answers  already  made  by  him  should  be  struck  from  the 
record : 

LACOOMBE,  Circuit  Judge.  The  memorandum  submitted  on 
behalf  of  the  defendant  has  been  carefully  considered.  The  court's 
understanding  of  the  matter  is  that  upon  the  hearing  counsel  for  the 
German  government  asked,  not  only  that  the  witness  be  excused  from 
answering  certain  questions  with  regard  to  documents  belonging  to 
the  German  consulate,  on  the  ground  that  they  were  privileged  by 
statute  and  by  treaty,  but  also  that  some  answers  which  the  witness 
(440)  had  already  incautiously  made,  purporting  to  give  the  con- 
tents of  part  of  such  documents,  should  also  be  stricken  out.  The 
"privilege"  was  that  of  the  German  government,  not  of  the  witness, 
and  inasmuch  as  the  witness  attended  under  the  compulsion  of  the 
subpoena  issued  out  of  the  circuit  court.  Southern  District  of  New 
York,  and  answered  under  constraint  of  an  apprehension  of  commit- 
ment by  the  same  court,  should  he  refuse,  it  was  assumed  to  be  with- 
in the  power  of  this  court  to  strike  out  any  part  of  the  testimony 
which  violated  the  "Drivilege"  of  the  German  government. 

215 


CONSULAR  CASES 

In  order  that  the  situation  maj'  be  presented  to  the  circuit 
court  in  Wisconsin  precisely  as  it  is,  the  examining  officer  will  certify 
the  record  which  was  before  this  court  on  the  motion,  and  also  the 
order  now  signed.  It  is  thought  that  the  result  will  be  the  same, 
whichever  court  disposes  of  the  question,  because  of  the  manifest  un- 
fairness of  allowing  a  party  to  avail  himself  of  part  of  a  "privileged" 
document  which  he  has  by  chance  got  upon  the  record,  when  the  as- 
sertion of  the  "privilege"  prevents  his  adversary  from  introducing 
the  rest  of  the  document. 

KESTOR,  THE,  (1901,  U.  S.— Great  Britain) 

110  Fed.  Rep.  432. 
Bradford,  District  Court. 

[Sect.  24  of  the  Act  of  December  21,  1898,  forbidding  the  prepay- 
ment of  sailor's  wages,  applies  to  a  British  subject  shipping  on  Brit- 
ish ship ;  there  being  no  treaty  to  the  contrary. — Ed.] 

KIDDERXJN  v.  MEYER,  (1838,  U.  S.) 

2  Miles  242. 

Per  Curiam,  District  Court  of  Philadelphia. 

(242)  PER  CURIAM.  (Extract)  This  is  not  a  suit  against 
the  consul.  And  although  in  the  progress  of  the  cause,  it  may  happen 
that  the  garnishee  will  be  placed  in  the  attitude  of  a  defendant,  yet 
even  then,  we  do  not  think  the  constitution  of  the  United  States,  or 
the  act  of  congress  referred  to,  can  be  legitimately  permitted  to  in- 
terfere with  the  usual  exercise  of  our  jurisdiction.  The  act  of  con- 
gress must  be  restricted  to  cases  in  which  the  consul  is  made  a  de- 
fendant directly  and  originally, — to  respond  for  his  own  debt  or  other 
liability.  To  put  upon  the  act  of  congress  the  construction  which 
is  claimed  here,  would  confer  a  privilege  on  the  proper  defendant, 
rathor  than  on  the  consul. 

Motion  denied. 

KOPPElt  v.  HEINRICHS,  (1847,  U.  S.) 

1    Barb.  449. 

Harris,  Supreme  Court  of  New  York. 

(450)  HARRIS,  J.  That  the  constitution  of  the  United  States 
has  conferred  upon  the  federal  courts  exclusive  jurisdiction  of  suits 
against  foreign  consuls  is  not  denied. 

But  the  question  now  before  the  court  relates  to  a  suit  commenced 
in  a  state  court,  before  the  party  claiming  exemption  as  a  consul  re- 
ceived his  appointment,  and  when  the  state  courts  had  jurisdiction 

216 


CONSULAR  CASES 

of  the  suit,  exclusive  of  the  federal  courts.  That  the  suit  was  right- 
fully commenced  in  the  New  York  common  pleas,  is  admitted:  and 
the  question  now  presented  for  determination  is,  whether  the  sub- 
sequent appointment  of  Heinrichs  as  consul  of  a  foreign  government 
deprived  the  state  court  of  the  jurisdiction  which  it  had  thus  right- 
fully acquired;  (451)  or  whether,  having  thus  obtained  jurisdiction, 
it  was  competent  for  the  state  court  to  proceed  to  consummate  its 
proceedings,  notwithstanding  the  privilege  conferred  upon  the  de- 
fendant by  virtue  of  his  subsequent  appointment.  The  general  rule 
on  the  subject  of  jurisdiction  is  that  it  depends  on  the  state  of  things 
at  the  time  the  action  is  brought;  and  if  the  circumstances  be  such, 
then,  as  to  vest  jurisdiction  ,  the  same  cannot  be  ousted  by  any  sub- 
sequent event.  (Mollan  v.  Torrance,  9  Wheat.  537.)  If  there  can 
be  said  to  be  any  exception  to  this  rule,  it  is  when  such  a  change 
in  the  parties  takes  place  after  the  commencement  of  the  suit  as  to 
work  an  abatement.  It  was  insisted  by  the  counsel  who  argued  this 
motion  for  the  defendant,  that  the  appointment  of  the  defendant  as 
consul  had  the  effect  to  abate  the  suit;  that  thereby  he  was  with- 
drawn from  the  jurisdiction  of  the  state  courts.  But  I  cannot  con- 
cur in  this  view  of  the  question ;  whether  the  privilege  conferred  upon 
consuls  by  the  constitution  and  law  of  the  United  States  is  to  be 
regarded  as  a  personal  privilege,  or  the  privilege  of  the  severeignty 
they  represent.  I  do  not  think  it  was  ever  intended  to  extend 
that  privilege  so  far  as  to  enable  a  party,  after  a  suit  commenced 
against  him  in  a  state  court  of  competent  jurisdiction,  to  divest 
that  court  of  jurisdiction  by  voluntarily  accepting  an  office  which, 
if  held  at  the  time  the  proceeding  was  instituted,  migh  have  been 
available  as  a  valid  objection  to  the  jurisdiction  of  the  court  in  which 
the  suit  was  brought.  No  decision  holding  such  a  principle  was 
referred  to  on  the  argument,  nor  do  I  feel  called  upon  to  adopt 
such  a  construction  of  the  constitution  and  laws  of  the  United  States 
affecting  ambassadors  and  consuls.  Conceding  that  the  exemption 
provided  in  behalf  of  these  officers,  is  the  privilege  not  of  the  person 
but  of  the  state  they  represent,  and  that  the  provision  is  founded 
upon  considerations  of  public  policy,  yet  I  cannot  conceive  that  it 
is  necessary,  in  giving  effect  to  this  provision,  to  violate  the  rule  that 
the  question  of  jurisdiction  is  to  be  determined  by  the  state  of  things 
existing  at  the  time  the  suit  was  commenced. 

The  case  of  Mannhardt  v.  Soderstrom  (1  Binney,  138,)  was  much 
relied  upon  in  support  of  the  motion.  But  I  cannot  (452)  regard 
that  ease  as  an  authority  to  sustain  the  position  assumed  on  behalf 
of  the  defendants.  There  the  defendant,  who  was  the  consul  general 
of  the  king  of  Sweden,  accompanied  his  plea  with  a  protestation  that 

217 


CONSULAR  CASES 

"at  aiid  before  the  time  of  instituting  the  action  he  was,  and  since 
that  time  had  eontinucd  to  be,  and  still  was,  consul  general,  etc.  and 
that  therefore  the  court  had  not  jurisdiction,"  etc.  He  then  made 
his  motion  to  quash  the  proceedings.  It  was  shown,  in  opposition 
to  the  motion,  that  in  various  instances  the  defendant  had  submitted 
to  suits  and  executions  from  the  state  courts.  Chief  Justice  Tilgh- 
man.  in  delivering  the  opinion  of  the  court,  said  in  reference  to  the 
defendant's  having  submitted  to  other  suits,  etc,  that  it  was  a  suf- 
ficient answer  to  the  objection  that  it  did  not  appear  on  the  record 
that  the  defendant  was  a  consul,  and  therefore  the  court  could  take 
no  notice  of  it ;  but  that  in  the  case  then  before  the  court,  it  appear- 
ing upon  the  record  that  the  suit  was  against  a  consul,  jurisdiction 
was  taken  away  by  the  ninth  section  of  the  judiciary  act.  Thus  it  will 
be  seen  that  the  case  relied  upon  is  distinguishable  from  that  now 
before  the  court,  in  two  essential  particulars :  first,  that  the  defendant 
was  a  consul  when  the  suit  was  commenced ;  and  secondly,  that  the  fact 
appeared  upon  the  record. 

Again ;  this  suit  was  originally  commenced  in  the  New  York  com- 
mon pleas.  It  was  removed  into  the  supreme  court  by  the  defendant 
himself,  who  became  the  plaintiff  in  error.  He  occupies  the  position 
of  one  voluntarily  bringing  his  suit  in  this  court  for  redress.  Shall 
he  be  permitted,  after  failing  in  that  suit,  to  have  the  proceedings 
declared  void  on  the  groimd  of  his  privilege  as  an  officer  of  a  foreign 
government.  Jurisdiction  of  state  courts  in  suits  in  which  foreign 
consuls  are  parties,  is  excluded  only  in  suits  against  them.  They  are 
still  at  liberty,  if  they  choose  to  do  so,  to  bring  suits  against  other 
persons,  in  state  courts.  It  seems  to  me,  therefore,  that  even  though 
the  defendant's  appointment  might  have  furnished  sufficient  grounds 
to  arrest  the  proceedings  in  the  common  pleas,  where  he  was  a  de- 
fendant, he  does  not  stand  in  the  same  position  in  the  court  to  which 
he  has  voluntarily  and  rightfully  applied  for  (453)  the  purpose  of 
correcting  what  he  deemed  an  error  in  the  court  below.  By  thus 
calling  upon  the  supreme  court  for  its  decision  upon  the  merits  of 
the  cau.se  commenced  against  him  in  the  common  pleas,  he  admitted 
its  jurisdiction  to  make  that  decision ;  and  whatever  might  have  been 
his  rights  in  the  court  below  in  respect  to  his  appointment  as  consul, 
he  should  be  deemed  to  be  concluded  in  this  court  by  his  admission 
of  its  jurisdiction,  in  bringing  his  writ  of  error  here. 

I  am  also  inclined  to  think  that  even  if  the  appointment  of  the 
defendant  as  consul,  after  the  suit  had  been  commenced  against  him, 
could  have  been  made  available  to  deprive  the  state  court  of  the  juris- 
diction it  had  acquired,  yet  the  objection  could  only  have  been  proper- 
ly made  by  plea,  or  perhaps  upon  motion,  before  proceeding  in  the 

218 


CONSULAR  CASES 

cause;  an3  that  having  neglected  to  avail  himself  of  his  exemption 
before  proceeding  to  the  trial  upon  the  merits,  he  precluded  himself 
from  afterwards  objecting  to  the  jurisdiction  of  the  court.  But  it 
is  unnecessary  to  decide  this  question.  It  is  enough  that  when  the 
suit  was  commenced,  the  federal  courts  had  no  jurisdiction  either  of 
the  defendant  or  the  subject  matter  of  the  suit,  but  that  jurisdiction 
of  both  belonged  exclusively  to  the  state  courts ;  that  the  suit  was  thus 
rightfully  commenced  in  the  New  York  common  pleas ;  that  after  the 
appointment  of  the  defendant  to  the  office  by  virtue  of  which  he 
now  claims  exemption,  he  proceeded  not  only  to  a  trial  on  the  com- 
mon pleas  upon  the  merits,  without  suggesting  to  the  court  his 
privilege,  but  also  brought  his  writ  of  error  to  the  supreme  court  to 
review  the  decision  of  the  common  pleas.  Under  these  circumstances, 
he  must  be  deemed  to  be  estopped  from  setting  up  his  privilege  in 
bar  of  the  jurisdiction  of  the  state  courts,  if,  indeed,  he  ever  had 
such  right.     The  motion  must  therefore  be  denied,  with  costs. 

LA  BLACHE  v.  RANGE!,  See  The  Nina. 

LADY  FTJRNESS,  THE,  (1897,  U.  S.— Great  Britain) 
84  Fed.  679. 

Tenney,  District  Court. 

(680)  (Extract)  Actions  of  this  character  should  not  be  en- 
couraged. Shipowners  have  rights,  as  well  as  sailors,  and  the  rights 
of  each  should  be  respected  and  upheld  by  the  courts.  The  contract 
was  signed  and  entered  into  by  the  libellant,  and  I  fail  to  see  any  good 
or  sufficient  reason  for  his  breaking  the  same  and  deserting  the  ship. 

It  is  urged,  however,  that  the  court  should  not  entertain  juris- 
diction of  this  case.  Even  the  British  consul  at  the  port  of  New 
York  has  requested  this  court  "not  to  exercise  jurisdiction  ."  It  will 
not  be  disputed,  I  apprehend,  that  the  matter  of  jurisdiction,  in  a 
case  like  the  one  at  bar,  is  very  much  in  the  discretion  of  the  court. 
This  (681)  case  has  been  tried,  and  it  seems  to  me  that  time  and  ex- 
pense, and  perhaps  further  litigation,  will  be  saved  by  this  court 
taking  jurisdiction  in  this  case,  which  it  does,  notwithstanding  the 
courteous  letter  of  the  British  consul  to  the  contrary.  The  libel  is 
therefore  dismissed,  with  costs.     Let  a  decree  be  entered  accordingly. 

LAMB  V.  BRIABD,  (1848,  U.  S.) 
Abb.  Adm.  367;  Fed.  Cases  8,010. 
Betts,  District  Court. 

This  was  a  libel  in  personam,  filed  by  James  Lamb  against 
"William  A.  Briard,  master  of  the  ship  Far  West,  to  recover  wages. 

219 


CONSULAR  CASES 

The  libel  stated  that  the  respondent  shipped  the  libellant,  as 
steward,  on  board  the  Far  West,  in  February',  1848,  at  New  Orleans, 
for  a  voyage  to  Europe  and  thence  back  to  some  port  in  the  United 
States,  at  $20  per  month;  that  shipping  articles  were  signed;  that 
libellant  entered  upon  the  service  of  the  ship,  February  10,  1848, 
about  which  time  she  (368)  sailed  for  Europe  ;that  on  the  arrival  of  the 
vessel  at  Harve,  the  mate  sent  the  libellant  on  shore  to  prison,  and  on 
his  release  from  prison  the  master,  having  hired  a  new  steward,  re- 
fused to  permit  him  to  return  to  his  duty  on  board  ship ;  that  libel- 
lant applied  to  the  American  consul  for  redress,  and  being  informed 
by  the  consul  that  the  master  was  very  vindicative  against  him,  he 
quitted  the  ship,  which  soon  after  sailed,  leaving  him  at  Havre,  where 
he  was  detained  at  his  owti  expense,  three  weeks.  The  libel  claimed 
to  recover  wages  for  the  entire  voyage,  and  the  expenses  incurred  by 
him  at  Havre,  amounting  in  all  to  $51.35. 

The  answer  stated  that  on  the  outward  voyage,  and  while  the 
ship  was  in  port  at  Havre,  the  libellant  was  disobedient,  interfering 
at  the  last  in  a  turbulent  manner  to  prevent  the  discipline  of  the 
ship  from  being  carried  on ;  that  he  was,  on  account  of  this  conduct, 
put  in  prison ;  that  the  respondent  immediately  thereupon  laid  the  case 
before  the  American  consul,  who  took  the  case  wholly  into  his  hands, 
caused  the  libellant  and  other  disobedient  members  of  the  crew  to 
be  brought  before  him,  and  reprimanded  them  and  ordered  them  to 
return  to  their  duty;  that  they  all  did  return,  except  the  libellant, 
who  requested  his  discharge ;  that  the  respondent  consented  to  his  be- 
ing discharged,  and  that  the  consul  certified  the  libellant 's  discharge 
on  the  shipping  articles,  paid  him  his  wages,  computed  at  $20.86,  and 
took  his  receipt  for  that  sura  in  full. 

The  shipping  articles,  the  receipt  given  by  the  libellant,  and  the 
certificate  of  discharge,  were  produced  and  duly  proved  upon  the 
hearing. 

Alanson,  Nash,  for  the  libellant. 

F.  S.  Stalknecht,  for  the  respondent. 

1.  The  consul  had  full  power  to  discharge  libellant  in  Havre. 
The  act  of  1840,  (ch.  48,  §  §  5  and  6,)  gives  discretionary  power  to 
consuls  to  discharge  a  mariner  at  a  foreign  port,  upon  the  applica- 
tion of  master  and  mariner. 

2.  All  the  requirements  of  the  act  were  complied  with  by  (369) 
the  consul.  The  consul,  Jones,  and  the  second  mate  testify  that 
libellant  requested  to  be  discharged.  It  is  also  admitted  that  re- 
spondent subsequently  united  in  the  request,  assigning  as  reasons 
therefor  that  Lamb  was  incompetent,  insolent,  and  disobedient.     The 

220 


CONSULAR  CASES 

proper  entry  was  also  made  upon  the  list  of  the  crew  and  the  shipping 
articles. 

3.  The  discharge  was,  therefore,  prima  facie  right  and  proper. 
But  it  will  be  sought  to  set  it  aside  on  the  ground  that  Lamb  was 
coerced  to  ask  for  his  discharge  by  being  imprisoned,  and  by  a  threat 
to  bring  him  home  in  irons.  Doubtless  he  was  induced  by  these  con- 
siderations to  wish  to  leave  the  ship;  but  if  the  imprisonment  was 
proper,  and  caused  by  his  disobedient  and  mutinous  conduct,  and  his 
discharge  was  necessary  to  preserve  the  discipline  and  safety  of  the 
ship,  this  court  will  uphold  it.  "Discharges  given  with  due  deliber- 
ation and  full  explanation  of  circumstances,  should  not  be  set  aside  on 
light  grounds."  Thorne  v.  White,  1  Pet.  Adm.  R.  178.  Final  dis- 
charges and  compromises,  on  due  consideration,  should  be  upheld. 
Per  Peters,  J.,  in  Harden  v.  Gordon,  2  Mason,  561.  The  cases  all 
concede  that  the  right  to  imprison  exists  though  there  must  be 
sufficient  cause.  Abbott  on  Shipp.  179.  In  the  United  States  v. 
Ruggles,  (5  Mason,  192,)  it  was  decided  that  in  case  of  mutiny  the 
right  to  imprison  exists. 

4.  A  review  of  the  facts  in  this  case  shows  that  the  imprison- 
ment of  the  libellant  was  not  only  justifiable,  but  necessary. 

5.  As  to  the  libellant 's  claim  for  his  expenses  in  Havre,  there  is 
no  proof  of  the  time  he  was  there,  or  of  the  amount  of  his  expenses. 
The  presumption  is  that  he  shipped  on  board  of  another  vessel,  as  he 
assured  the  consul  he  could  easily  obtain  another  ship. 

6.  A  distinction  is  also  made  in  the  books  between  the  power 
to  discharge  a  seaman  and  a  steward.  In  the  case  of  Black  v.  The 
Ship  Louisiana,  (1  Pet.  Adm.  R.  268,)  (370)  it  was  decided  that  if 
a  steward  is  found  to  be  incompetent,  the  master  can  discharge  him. 
It  is  in  evidence  that  Lamb  was  not  only  insolent  and  disobedient,  but 
also  incompetent  to  discharge  his  duties  as  steward. 

7.  Further,  the  general  principle  of  maritime  law  is,  that  a 
seaman  may  forfeit  his  wages  by  gross  offences.  Lamb  certainly  was 
guilty  of  gross  offences,  such  as  constitute  a  forfeiture. 

BETTS,  J.  The  suit  is  obviously  an  experimental  one,  seeking 
to  establish  a  right  to  wages  upon  the  testimony  of  two  shipmates, 
against  the  official  acts  of  the  United  States  consul  at  Havre,  certify- 
ing the  discharge  of  the  libellant  to  have  been  by  mutual  consent  on 
his  part,  and  on  that  of  the  master  of  the  ship,  and  with  the  approval 
of  the  consul. 

Previous  to  the  act  of  1840,  a  seaman  who  deliberately  and  volun- 
tarily took  his  discharge  from  a  vessel  in  the  course  of  the  voyage, 
lost  all  claim  to  a  continuance  of  wages,  and  the  courts  were  disposed 

221 


CONSULAR  CASES 

to  countenance  such  discharges  when  it  appeared  that  there  were 
reasonable  grounds  for  them.  Harden  v.  Gordon,  2  Mason,  561 : 
Thome  v.  White,  1  Pet.  Adm.  R.  178.  The  act  of  February  28,  1803, 
however,  in  cases  of  discharge  of  seaman  abroad,  by  mutual  consent, 
compelled  the  master  to  pay  the  consul  at  the  port  three  months' 
wages,  as  an  indemity  to  the  United  States  against  the  support  of 
the  seaman  and  his  passage  home.  The  act  of  July  20,  1840,  (§  1, 
arts.  5  and  6,)  conferred  upon  the  United  States  consuls  power 
to  discharge  absolutely  mariners  from  vessels,  on  the  joint  application 
of  both  the  master  and  the  men,  without  requiring  payment  of  three 
month's  wages,  when  in  the  judgment  of  the  consuls,  it  was  expedient; 
or  the  consuls  were  authorized  to  impose  such  terms  for  the  indemity 
of  the  United  States,  as  they  might  deem  proper. 

The  evidence  is  full  to  show  that  in  this  case  the  consul  person- 
ally examined  into  the  matter.  He  had  the  master  (371)  with  the 
libellant  and  others  of  the  crew  before  him,  and  decided  that  the 
libellant  might  be  discharged.  This  was  accordingly  done — both  his 
own  consent  and  that  of  the  master  being  also  given.  A  certificate 
of  the  fact  that  the  libellant  was  discharged  by  his  own  consent  is 
entered  upon  the  articles  under  the  hand  and  seal  of  the  consul, 
who,  moreover,  gives  his  testimony  on  deposition  to  the  same  effect.  It 
is  further  proved,  by  the  assistant  of  the  consul,  that  the  respondent 
paid  into  the  consulate  $20.86,  the  balance  of  wages  due  the  libellant, 
and  that  the  libellant  received  the  money  and  signed  a  receipt  there- 
fore, therein  stating,  also,  that  he  had  been  discharged  at  his  own  re- 
quest, and  with  his  free  will,  and  that  the  sum  paid  was  in  full  of 
the  wages  due  him,  and  of  all  demands  against  the  ship. 

This  receipt  is  annexed  to  the  commission,  and  is  authenticated 
by  the  consular  seal,  and  proved  by  the  deposition  of  the  assistant. 

This  is  evidence  of  the  most  satisfactory  character,  that  the 
rights  of  the  seaman  were  duly  cared  for  and  protected,  and  it  re- 
lieves the  court  from  all  those  doubts  which  not  unfrequently  hang 
over  the  propriety  of  discharges  abroad,  granted  at  the  instance  of 
mariners  alone. 

Manifestly,  congress  had  in  view  the  importance  of  placing  over 
the  conduct  of  masters  and  sailors  the  supervision  of  a  public  fimc- 
tionarj'.  who  should  control  these  matters  in  subordination  to  the  inter- 
est of  the  mariner  and  of  the  United  States.  This  is  also  regarded 
as  a  sufficient  check  to  improvident  discharges,  without  the  penalty  of 
three  months'  wages  being  impo.sed.  The  actions  of  consuls  under 
the  provisions  of  the  statute  are,  therefore,  if  not  absolutely  conclusive 
as  to  the  facta  that  the  discharge  was  by  the  consent  and  free  will 
of  the  ojiirioer  apd  to  his  benefit,  at  least  of  force  to  overbalajice  the 

222 


CONSULAR  CASES 

mere  assertions  and  opinions  of  shipmates  and  other  bystanders,  how- 
ever numerous  they  may  be.  In-  (372)  deed,  it  is  doubtful  whether 
evidence  could  be  received  on  the  part  of  the  libellant,  impeaching 
the  validity  of  the  certificate  and  official  act  of  the  consul,  unless  it 
amounted  to  a  proof  of  fraud  or  plain  dereliction  of  duty  on  his 
part.^ 

It  is  unnecessary  to  consider  the  question  which  was  raised  by 
the  consul,  upon  evidence  tending  to  show  that  the  seaman  was  in- 
duced to  consent  to  his  discharge  by  the  threat  of  the  master  and  con- 
sul that  he  should  be  brought  home  in  irons — viz.,  whether  the  ap- 
plication of  a  sailor  for  discharge  under  the  apprehension  that  he  was 
to  be  subjected  to  imprisonment  and  hard  usage  on  shipboard, 
when  innocent  of  any  offence,  might  be  regarded  as  negativing  his 
free  consent  to  the  discharge.  For  in  my  opinion,  there  is  prima  facie 
evidence  in  this  case  sufficient  to  justify  the  master  in  confining  the 
libellant  and  bringing  him  home  as  a  mutinous  and  insubordinate 
seaman.  And,  furthermore,  in  my  judgment,  the  decision  of  the 
consul,  rendered  upon  an  inquiry  made  on  the  spot  into  the  allegations 
on  both  sides,  and  in  the  presence  of  the  parties,  must,  in  a  fair 
interpretation  of  the  act  of  congress,  be  regarded  as  final  in  this 
particular,  unless  the  conduct  of  the  consul  be  shown  to  have  been 
corrupt  or  fraudulent. 

The  mischiefs  of  the  old  system  were,  that  men  were  often 
compelled  by  the  severe  conduct  of  the  master,  or  seduced  by  his 
connivance,  to  abandon  the  vessel  abroad,  to  the  great  injury  and  op- 
pression of  the  seamen  themselves,  and  under  circumstances  tending 
to  deprive  the  United  States  of  their  after  services ;  and  also  that  sea- 
men were  often  kept  on  board  in  violation  of  their  shipping  con- 
tracts. The  act  of  1840  interposed  the  official  supervision  of  consuls 
in  the  matter,  referring  it  to  them  to  determine  when  a  seaman  might 
be  released  from  the  vessel,  on  the  mutual  consent  of  himself  and  the 
master,  and  in  what  cases  he  might  be  entitled  to  a  discharge  be- 
cause of  the  violation  of  the  shipping  contract  on  the  part  of  the 
master. 

The  statute  has  provided  no  means  of  reviewing  the  determina- 
tion of  consuls  in  these  matters,  either  on  behalf  of  seamen  or  of 
masters,  and  accordingly  they  must  be  considered  final,  unless  given 
under  circumstances  rendering  them  void  in  toto. 

I  hold,  in  the  present  case,  that  there  is  no  foundation  for  the 
action,  and  that  the  libel  must  be  dismissed  with  costs. 

Decree  accordingly. 

^  In  respect  to  the  requisites  of  a  valid  consular  discharge  and  certificate, 
Bee  The  Atlantic,  decided  February,  1849,  and  reported  post,  in  order  of  date. 

223 


CONSULAR  CASES 
LANFEAR  v.  KITCHIE,  (1854,  U.  S.— Sweden) 

9  La.  Ann.  96. 

Ogden,  Supreme  Court  of  Louisiana, 

(Syllabui)  On  the  death  of  a  subject  of  the  king  of  Sweden,  an  admin- 
istrator of  hia  succession  was  appointed,  whom  the  Swedish  vice-consul  sought  to 
supercede.  Held:  the  right  claimed  is  not  sustained  by  any  law,  or  treaty  stip- 
ulation. 

[J.  Lathrop  said  in  re  Wyman  that  this  case  was  decided  "at 
a  time  when  we  might  expect  the  doctrine  of  state  rights  to  be 
strongly  insisted  upon." — Ed.] 

LAS  CAYGAS  v.  LARIONDA'S  SYNDIC,  See  Caygas. 

LEAVITT  V.  UNITED  STATES,  (1888,  U.  S.) 

3-4  Fed.  Rep.   623. 

Brown,  District  Court. 

Consul's  claim  for  reimbursement. 

BROWN,  J.  On  the  17th  of  August,  1887,  Humphrey  H.  Leavitt, 
the  petitioner  above  named,  filed  his  petition  in  this  court  pursuant  to 
the  (624)  provision  of  the  act  of  March  3,  1887,  (24  St.  at  Large,  c. 
359,  p.  505,)  to  recover  of  the  United  States  the  sum  of  $72,  alleged 
to  have  been  expended  by  him  in  January,  1885,  as  the  United  States 
consul  in  Nicaragua,  by  the  direction  of  the  department  of  state,  in 
procuring  certain  articles  for  the  World's  Industial  Exposition  at 
New  Orleans.  A  copy  of  the  petition  was  duly  served  upon  the 
United  States  attorney,  and  sent  to  the  attorney  general,  as  directed 
by  the  said  act.  The  United  States  district  attorney  appeared  and 
defended,  and  the  cause  was  tried  before  the  court  without  a  jury,  as 
required  by  section  2.     I  find  the  following  facts: 

FINDING  OF  FACTS. 

(1)  That  the  petitioner  was  the  first  appointee  of  the  con- 
sulate at  Manaqua,  Nicaragua;  that  he  qualified  in  August,  1884; 
arrived  at  Managua  in  the  latter  part  of  September  of  that  year,  and 
thereupon  entered  upon  and  performed  the  duties  of  his  consulate, 
until  relieved  by  his  successor  in  1886.  (2)  In  December,  1884, 
he  received,  inclosed  in  a  dispatch  from  the  department  of  state,  the 
following  circular  letter: 

"CIRCULAE 
"Dkpaetment  oy  State 

"Washington,  D.  C,  November  17,  1884. 
"To  the  Consular  Officers  of  the  United  (Stotca— Dear  Sirs:  Referring  to 

224 


CONSULAR  CASES 

the  previous  circulars  issued  from  this  department  respecting  the  contributions  re- 
quested on  the  part  of  the  consular  corps  in  behalf  of  the  World's  Exposition,  I 
have  the  pleasure,  in  behalf  of  the  department,  to  express  appreciation  of  the 
very  general  response  in  reply  thereto.  It  seems,  however,  that  some  of  the  con- 
suls have  construed  the  request  to  be  of  a  more  extended  nature  than  intended, 
and  have  hesitated  in  action  because  means  and  time  seem  not  to  justify  the 
effort  to  obtain  a  large  number  of  contributions,  or  articles  of  importance  and 
bulk.  There  is  ample  time,  but  the  appropriation  is  an  act  of  congress.  I  beg 
to  suggest  that  a  souvenir  which  may  characterize  the  industries  or  peculiarities 
of  the  consulate  will  be  most  acceptable,  even  though  of  the  smallest  degree,  or 
in  minute  shape,  if  appropriate  and  attractive;  and  it  is  not  desired  that  consuls 
should  depend  upon  voluntary  contributions.  It  gives  me  pleasure,  also,  to  ad- 
vise that  the  inauguration  of  this  grand  enterprise  will  not  take  place  until  the 
15th  of  December;  and,  lasting  as  it  does  until  the  1st  of  June,  1885,  there  is 
ample  time  for  every  consul  to  forward  some  striking  representation;  in  view  of 
which  fact,  please  ship  by  freight.  I  have  the  honor  to  be,  dear  sir,  very  re- 
spectfully yours,  etc., 

"Chas.  S.  Hill,  Kepresentative  Department  of  State." 

And  that  the  petitioner  did  not  receive  any  other  circular  or 
letter  upon  the  same  subject.  The  original  of  said  circular  letter  is 
filed  in  the  archives  of  the  consulate  at  Managua.  (3)  That  pursu- 
ant to  the  suggestion  of  the  above  circular  letter,  the  petitioner,  in 
January,  1885,  purchased  various  articles  characteristic  of  the  indus- 
tries and  peculiarities  of  his  consulate,  of  the  value  of  $72,  and  paid 
therefor,  which  he  at  once  forwarded  addressed  to  Charles  S.  Hill, 
Representative  of  the  "World's  Exposition  at  New  Orleans,  care  of 
Houghwout  Howe,  U.  S.  Despatch  Agent,  New  York,  pursuant  to 
previous  instructions  to  that  effect.  (4)  That  the  articles  so  pur- 
chased were  received,  and  placed  under  the  di-  (625)  rection  of  the 
department  of  state  in  the  exposition  at  New  Orleans,  and  that  an 
award  of  merit  was  subsequently  presented  to  the  petitioner  by  said 
Hill,  in  the  state  department,  for  the  exhibit  thereof  made.  (5)  That 
said  Hill  was  duly  appointed,  and  acted  as  representative  of  the  de- 
partment of  state  in  the  matters  concerning  the  said  exposition. 
(6)  That  in  1886,  upon  the  petitioner's  return  from  Nicaragua,  the 
biU  for  the  above  articles  was  presented,  with  his  accounts,  to  Mr. 
Sinclair,  the  chief  of  the  consulate  bureau,  by  whom  he  was  referred 
to  said  Hill  in  respect  to  said  purchase;  that  thereupon  his  account, 
with  vouchers  in  triplicate,  was  made  out  and  delivered  to  said  Hill, 
as  directed  by  him,  by  whom  the  petitioner  was  told  that  a  check  would 
be  sent  him  for  the  amount  as  soon  as  the  deficiency  bill  had  passed; 
that  the  appropriation  by  the  act  of  congress  had  been  exhausted ;  and 
that  they  expected  to  pass  a  deficiency  bill  very  shortly;  that  after- 
wards, in  answer  to  a  demand  of  payment,  the  following  letter  was  re- 
ceived from  the  department  of  state : 

225 


CONSULAR  CASES 

"DiPARTMENT   OP  StATI 

"Washington,  August  11,  1880. 

H.  E.  Leavitt,  Esquire,  No.  280  Broadway,  New  York — Sir:  A  copy  of  your 
letter  of  the  13th  ultimo,  relating  to  the  articles  furnished  by  you  for  the  late 
exposition  at  New  Orleans,  has  been  sent  to  Mr.  Hill,  who  was  the  representative 
of  this  department  at  that  exposition.     I  am,  sir,  your  obedient  servant, 

Jos.  D.  PoRTEE,  Assistant  Secretary." 

(7)  That  by  act  of  July  7,  1884,  (23  St.  at  Large,  c.  332,  p. 
207.)  there  was  an  appropriation  by  congress  *'to  enable  the  several 
executive  departments  *  *  *  to  participate  in  the  World's  In- 
dustrial and  Cotton  Centennial  Exposition  to  be  held  at  New  Or- 
leans." of  various  sums  of  money;  among  others,  "for  the  state  de- 
partment, ten  thousand  dollars."  (8)  That  when  the  petitioner's 
bill  was  presented  for  payment,  in  July  or  August,  1886,  the  above 
appropriation  had  been  exhausted.  It  does  not  appear  at  what  time 
prior  thereto  the  appropriation  was  exhausted;  nor  whether  at  the 
time  the  circular  letter  above  mentioned  was  sent  to  the  petitioner, 
or  was  received  and  acted  on  by  him,  the  amount  of  said  appropria- 
tion had  been  covered  in  previous  orders. 

Upon  the  foregoing  facts,  it  is  to  be  observed,  that  the  first 
section  of  the  act  of  March  3,  1887,  gives  the  court  of  claims  jurisdic- 
tion to  hear  and  determine  "all  claims  founded  upon  *  *  *  any 
regulation  of  an  executive  department,  or  upon  any  contract,  ex- 
pressed or  implied,  \v\ih  the  government  of  the  United  States,  or  for 
damages,  liquidated  or  unliquidated,  in  cases  not  sounding  in  tort, 
in  respect  of  which  claims  the  party  would  be  entitled  to  redress 
against  the  United  States,  either  in  a  court  of  law,  equity,  or  admiralty, 
if  the  United  States  were  suable."  Section  2  confers  upon  the  United 
States  district  courts  concurrent  jurisdiction  "as  to  all  matters  named 
in  the  preceding  section  where  the  amount  of  the  claim  does  not  ex- 
ceed one  thousand  dollars;"  such  causes  to  "be  tried  by  the  court  with- 
out a  jur>'."  Upon  the  facts  above  found,  it  is  contended  in  de- 
fense that  the  circular  letter  of  October  17,  1884,  does  not  purport  to 
direct  or  authorize  consuls  to  make  any  purchases  (626)  at  the 
charge  of  the  United  States;  and,  second,  that  if  it  does  authorize 
such  purchases  it  is  not  binding  upon  the  government,  because  the 
department  of  state  had  no  authority  to  authorize  such  a  debt  to  be 
contracted  in  the  absence  of  appropriations  therefor.  Sections  3679 
and  3772  of  the  revised  statutes  in  effect  prohibit  any  expenditure  or 
contract  in  behalf  of  the  government  in  excess  of  appropriations 
therefor,  except  in  the  war  and  navy  departments,  for  specific  pur- 
poses.   Bradley  v.  U.  S.,  98  U.  S.  104,  112.     I  cannot  doubt  that  the 

226 


CONSULAR  CASES 

proper  construction  of  the  circular  letter  of  November  17th  is  that 
the  consuls  to  whom  it  was  addressed  were  desired  to  procure  by  pur- 
chase on  account  of  the  United  States,  to  a  limited  extent,  characteris- 
tic articles  as  souvenirs  of  their  respective  consulates.  The  circular 
says:  "It  is  not  desired  that  the  consul  should  depend  upon  volun- 
tary contributions."  It  ends:  "Please  ship  by  freight."  The  pre- 
ceding paragraph  says:  "There  is  ample  time;  but  the  appropria- 
tion is  an  act  of  congress."  The  suggestion  and  the  request,  com- 
ing from  the  department  of  state,  were  practically  equivalent  to  a 
direction  or  command.  The  reference  to  the  appropriation  as  "an 
act  of  congress"  would  be  altogether  misleading  if  the  circular  had 
been  intended  by  the  department  to  be  understood  by  the  consuls 
as  a  request  to  pay  for  the  articles  out  of  their  own  pockets.  Ten 
thousand  dollars  had  in  fact  been  already  appropriated  by  congress  for 
the  especial  use  of  the  state  department  in  this  matter,  as  was  pre- 
sumably known  to  the  petitioner.  The  subsequent  treatment  of  the 
matter  by  the  department,  and  by  Mr.  Hill,  as  its  representative,  also 
shows  clearly  that  the  expense  of  procuring  such  articles  was  not  de- 
signed to  be  at  the  consul's  personal  charge.  The  expenditure  made 
by  the  consul  was  certainly  moderate;  and  it  is  not  claimed  to  have 
been  in  excess  of  the  "suggestion"  or  intent  of  the  circular.  In  pur- 
chasing the  articles  the  petitioner  relied,  and,  in  my  judgment,  had  a 
right  to  rely,  upon  the  construction  of  the  circular,  above  given. 
Upon  this  transaction  there  was,  therefore,  an  implied  contract  with 
the  government  to  reimburse  him  for  the  amount  paid;  and  the  cir- 
cular itself  was  also  equivalent  to  a  "regulation  of  an  executive  de- 
partment" upon  this  particular  topic,  and  within  the  first  section 
of  the  act  above  stated,  unless  the  department  had  no  authority  to 
make  such  a  contract,  or  to  issue  such  a  circular  at  the  time  it  was 
forwarded  to  the  petitioner. 

Counsel  for  the  government  contend  that  not  only  the  sections 
of  the  revised  statutes  above  referred  to,  but  the  various  acts  of  con- 
gress authorizing  government  participation  in  the  exposition,  show 
at  every  step  that  the  government  was  not  to  be  bound,  and  that 
the  various  departments  had  no  authority  to  bind  it,  beyond  the  pre- 
cise sums  appropriated.  The  principle  is,  doubtless,  correct,  (Brad- 
ley V.  U.  S.,  supra;)  But  the  proofs,  I  think,  are  not  sufficient  to 
warrant  its  application  as  a  bar  of  the  petitioner's  recovery  in  this 
case. 

It  is  not  claimed  that  the  circular  of  November  17,  1884,  and  the 
petitioner's  purchase  of  articles  under  it,  were  not  properly  within 
the  appropriation  of  $10,000  for  the  state  department  made  by  the 
act  of  July  7th,  unless  the  obligations  already  contracted  were  in  ex- 

227 


CONSULAR  CASES 

cess  of  that  sura.  (627)  There  is  no  proof,  however,  as  to  the 
amount  of  obligations  contracted  by  the  state  department  under  that 
appropriation  before  the  circular  was  forwarded  to  the  petitioner,  and 
acted  on  by  him.  Mr.  Hill  had  timely  notice  of  the  petitioner's  pur- 
chase, as  appears  by  his  letter  as  representative  of  the  state  depart- 
ment from  New  Orleans  dated  February  26,  1885,  The  things  pur- 
chased were  received,  not  only  without  objection,  but  "with  his  sin- 
cere thanks  in  behalf  of  the  department."  In  these  circumstances, 
and  in  the  whole  proofs,  there  is  no  intimation  that  the  purchase  of 
these  articles  at  that  time  made  the  expenditure  run  up  in  excess  of 
$10,000. 

The  authority  to  the  department  was  a  general  authority  up  to 
the  limit  of  $10,000.  It  was  a  general  agency  within  that  limit, 
and  for  the  purposes  contemplated.  The  act  of  congress  contemplated 
and  provided  for  a  multitude  of  acts  and  expenditures,  not  in  the 
aggregate  exceeding  that  sum.  Whether  or  not  that  limit  had  been 
previously  passed  was  a  matter  not  possible  to  be  known  by  the  peti- 
tioner, and  even  now  scarcely  ascertainable  by  him ;  but  peculiarly 
within  the  knowledge  of  the  principal,  the  defendant  here.  In  such 
a  case,  where  the  authority  is  general  up  to  an  assigned  limit,  as 
against  a  person  dealing  with  the  agent  in  good  faith  and  without 
means  of  knowledge,  the  burden  of  proof  at  least  should  be  held  to 
be  upon  the  principal  to  show  that  that  limit  had  been  passed,  if  he 
wishes  to  deny  the  authority  of  the  agent  upon  that  ground.  Such 
I  think  are  all  the  analogies  of  the  law.  Inasmuch,  also,  as  sections 
3679  and  3772  of  the  revised  statutes  prohibit  any  department  or  pub- 
lic officer  from  making  any  expenditure  or  contract  in  excess  of 
appropriations,  a  violation  of  these  provisions  of  law  is  not  to  be 
presumed ;  certainly  not  a  violation  by  the  department  of  state,  until 
the  fact  affirmatively  appears.  The  petitioner,  upon  receiving  the 
circular,  was  in  no  situation,  as  above  stated,  to  question  the  authority 
of  the  department  to  issue  it,  or  to  authorize  the  desired  expenditure. 
It  would  have  been  a  singular  proceeding  if,  before  acting  upon  the 
circular,  the  petitioner  should  have  endeavored  to  verify  the  author- 
ity of  the  state  department  by  an  inquiry  into  the  number  and  amount 
of  previous  or  contemporaneous  orders.  Such  inquiries  would  be 
likely  to  be  deemed  meddlesome  and  insubordinate,  and  followed  by 
a  speedy  removal  from  office.  He  had  a  right  to  rely  upon  the  pre- 
sumption that  the  head  of  the  department  was  acting  within  the 
prescribed  limits  of  his  authority.  Under  such  circumstances,  when 
he  brings  suit  for  the  moneys  expended  in  pursuance  of  virtual  in- 
structions, there  is,  it  seems  to  me,  special  reason  why  the  same  pre- 

228 


CONSULAR  CASES 

sumption  should  prevail,  until  the  contrary  appears  by  proof  of 
facts  sufficient  to  show  that,  at  the  time  when  the  orders  were  given 
and  acted  on,  the  limits  of  the  agent's  authority,  1.  e.,  the  expenditure 
authorized  by  congress,  had  been  passed.  There  is  no  such  proof  in 
this  case.  The  circular  and  the  request  to  the  consul  must,  there- 
fore, be  deemed  duly  authorized  at  the  time,  and  binding,  as  an  im- 
plied contract  with  the  government.  The  cases  cited,  in  which  the 
government  has  been  held  not  boimd,  were  where  the  appropriation 
was  for  a  single  specific  purpose;  and  the  contractor  had  full  know- 
ledge of  the  limitation.  (628)  Curtis  v.  U.  S.,  2  Ct.  CI.  144,  152; 
Trenton  Co.  v.  U.  S.,  12  Ct.  CI.  147.  The  fact  that  the  appropriation 
was  found  to  be  exhausted  a  year  and  a  half  afterwards,  when  the 
bill  and  the  consul's  accounts  were  presented  for  payment,  does  not 
constitute  such  proof.  If  authorized  at  the  time  it  was  issued  and 
acted  on,  it  could  not  be  invalidated  by  the  payment  of  subsequent 
charges  or  expenses  to  the  extent  of  the  appropriation.  Trenton  Co. 
V.  U.  S.,  12  Ct.  CI.  147,  159.  The  mere  fact  that  when  the  bill  was 
presented  for  payment  there  was  no  appropriation  remaining,  is, 
therefore,  no  bar  to  the  present  action.  Section  10  of  the  act  of 
March  3,  1887,  provides  as  follows:  "From  the  date  of  such  final 
judgment  or  decree  interest  shall  be  computed  thereon,  at  the  rate 
of  four  per  centum  per  annum,  until  the  time  when  an  appropriation 
is  made  for  the  payment  of  the  judgment  or  decree ; "  a  specific  recog- 
nition of  the  fact  that  a  judgment  may  be  rendered,  in  a  proper  case, 
although  there  is  no  present  appropriation  for  its  payment, 

CONCLUSION  OF  LAW. 

Upon  the  above  facts  the  petitioner  is  entitled  to  judgment 
against  the  United  States  for  the  sum  of  $72,  and  $14.21  interest, 
amounting  to  $86.21,  together  with  the  costs  provided  by  section  15 
of  the  act  of  March  3,  1887  to  be  taxed.  A  stay  of  60  days  is  allowed 
after  service  of  a  copy  of  this  decision  on  the  United  States  attorney. 

LEON  XIII,  THE,   (1883,  Great  Britain) 
L.  E.  8  P.  D.  121;  5  Aspin.  73. 

Brett,  Court  of  Appeal. 

[In  this  case  besides  suit  for  wages  there  was  question  of  ill- 
treatment  but  on  appeal  it  was  held  that  the  lower  court  made  a 
proper  exercise  of  discretion.  Therefore  this  case  contains  nothing 
more  than  the  "Nina"  except  as  an  example  where  the  court  refused 
jurisdiction  in  still  more  important  circumstances. — Ed.] 

229 


CONSULAR  CASES 
lEVETJX  V.  BERKELEY,  (1844,  Great  Britain) 

13  L.  J.  Q.  B.  244;  S  Jurist  666. 

Lord  Dcnman,  Queen's  Bench. 

[Concerning  the  swearing  of  affidavits  in  foreign  countries — fol- 
lows the  case  of  ex  parte  Hutchinson. — Ed.] 

LEVY  V.  BTJRLEY,  (1836,  U.  S.) 
2  Sumn.  355;  Fed.  Cases  8,300. 
Story,  Circuit  Court. 

Where  public  oflScers  are  authorized  by  law  to  certify  to  certain  facts,  their 
certificates  to  these  facts  are  competent  evidence  thereof. 

A  consul's  certificate  of  any  fact  is  not  evidence  between  third  persons,  un- 
less expressly  or  impliedly  made  so  by  statute. 

Quaere,  if  a  consul's  certificate  is  evidence,  that  a  ship's  register  was  depos- 
ited with  him,  agreeably  to  the  act  of  congress  of  1803,  ch.  62,  sect.  2. 

An  information  was  brought  in  the  name  of  the  consul  of  the  United  States, 
for  the  island  of  St.  Thomas,  suing  for  the  benefit  of  the  United  States,  against 
the  defendant,  to  recover  a  penalty  for  not  depositing  with  the  consul  the 
ship 's  register  on  her  arrival  at  the  port  of  St.  Thomas,  agreeably  to  the  act  of 
congress  of  1803,  ch.  62,  sect.  2.  Held,  that  the  certificate  of  the  consul  was 
not  admissible  evidence,  to  prove  the  arrival  or  departure  of  the  vessel. 

Quaere,  if  a  consul,  who  sues  for  a  penalty,  in  his  own  name  and  person,  but 
for  the  benefit  of  the  United  States,  is  liable  for  costs. 

Quaere,  if  a  party  plaintiff  of  record,  who  has  no  interest  in  the  suit,  is  a 
competent  witness. 

Quaere,  if  an  information  is  the  proper  proceeding  in  the  present  case,  where 
the  suit  is  not  brought  in  the  name  of  the  government. 

This  was  a  writ  of  error,  to  the  judgment  of  the  district  court 
of  the  United  States,  for  the  district  of  Massachusetts.  The  (356) 
original  suit  was  an  information  brought  by  the  district  attorney,  in 
the  name  of  Nathan  Levy,  consul  of  the  United  States,  for  the  is- 
land of  St.  Thomas,  suing  for  the  benefit  of  the  United  States,  against 
David  Burley  (the  defendant  in  error),  master  of  the  ship  Redwing, 
to  recover  the  penalty  of  500  dollars,  for  not  depositing  with  the  said 
consul,  the  ship's  register  on  her  arrival  at  the  port  of  St.  Thomas, 
according  to  the  requirement  of  the  supplementary  act,  respecting 
consuls  and  vice-consuls,  of  the  28th  of  February,  1803,  ch.  62. 
The  defendant  pleaded  not  guilty,  upon  which  issue  was  joined  and 
a  verdict  passed  upon  the  trial,  in  his  favor.  A  bill  of  exceptions 
was  taken  at  the  trial;  from  which  it  appeared,  that  a  certificate  of 
the  said  consul  (the  plaintiff),  under  the  seal  of  his  consulate,  was 
offered  in  evidonce,  on  behalf  of  the  plaintiff,  stating  the  fact,  of  the 
arrival  and  departure  of  the  ship,  at  the  said  port  of  St.  Thomas;  and 
that  the  defendant,  Burley,  neglected   and  refused  to  deposit  the 

230 


CONSULAR  CASES 

register  of  the  ship  in  the  hands  of  the  consul.  The  certificate  being 
objected  to,  as  evidence,  the  learned  judge  of  the  district  court  ruled, 
that  the  certificate  was  evidence,  that  the  defendant  Burley,  did  neg- 
lect or  refuse  to  deposit  the  register  with  the  consul,  but  that  the 
same  was  not  admissible  to  prove  the  arrival  and  departure  of  the 
ship  from  the  port  of  St.  Thomas.  To  this  opinion,  the  plaintiff  filed 
his  bill  of  exceptions;  and  the  question  now  presented  to  the  court, 
was  whether  the  certificate  was  admissible,  for  the  purpose  of  proving 
such  arrival  and  departure. 

Mills,  District  Attorney,  for  the  plaintiff,  argued,  that  the 
plaintiff  in  the  present  case,  not  being  liable  for  costs,  was  a  compe- 
tent witness,  though  a  party  to  the  record.  No  objection  can  be 
taken,  because  the  certificate  is  not  sworn  to,  as  the  consul  is  a  public 
officer,  acting  under  his  oath  of  office.  The  district  judge  admitted  it 
as  evidence,  that  the  register  was  deposited;  but  not  of  the  arrival 
of  the  vessel.  It  would  seem  to  be  prima  facie  evidence  of  the  arrival 
of  the  vessel,  as  con-  (357)  suls  are  ex-officio  bound  to  take  notice  of 
the  arrival  and  departure  of  American  vessels.  He  cited,  act  of  con- 
gress of  1803,  ch.  62  §  sect.  2. 

Shipley,  e  contra,  for  the  defendant,  contended,  that  the  plain- 
tiff, being  a  party  to  the  suit,  was  an  incompetent  witness,  though  not 
liable  to  costs.  The  statute  makes  it  the  duty  of  the  consul,  to  pros- 
ecute in  an  alleged  case  like  the  present,  but  does  not  make  him  a 
competent  witness.  His  certificate  is  not  evidence  of  any  fact,  except 
what  is  within  the  consular  functions.  Church  v.  Hubbard,  2  Cranch 
R.  237 ;  United  States  v.  Mitchell,  2  Wash.  C.  R.  478 ;  Catlett  v.  Pacific 
Ins.  Co.,  (1  Paine  R.  610.)  The  consular  functions  are  enumerated 
in  the  statute.  According  to  this,  the  consul  is  not  bound  to  keep  a 
record  of  arrivals.  The  ninth  section  of  this  statute,  expressly  makes 
his  certificate  evidence  in  certain  cases.  This  express  provision  ex- 
cludes the  conclusion,  that  it  is  competent  evidence,  in  cases  not  pro- 
vided for.  The  statute,  moreover,  is  a  penal  statute,  and  to  be  con- 
strued strictly. 

STORY,  J.  The  act  of  1803,  ch.  62  §  sect.  2,  provides,  that 
it  shall  be  the  duty  of  every  master  of  a  ship  belonging  to  the  United 
States,  on  his  arrival  at  a  foreign  port,  to  deposit  his  register,  etc. 
with  the  consul  or  other  commercial  agent  of  the  United  States  at 
such  port;  and  in  case  of  his  refusal  or  neglect,  he  is  to  forfeit  and 
pay  500  dollars,  to  be  recovered  by  the  consul  or  other  commercial 
agent;  "in  his  own  name,  for  the  benefit  of  the  United  States,  in 
any  court  of  competent  jurisdiction."  No  provision  is  made,  as  to  his 
certificate  of  the  fact  being  evidence  of  such  refusal  or  neglect,  or  of 

231 


CONSULAR  CASES 

the  arrival,  or  of  the  departure  of  the  vessel.  But  in  another  section 
of  the  act,  (§  4).  it  is  expressly  provided,  that  the  certificate  of  the 
consul  under  his  hand  and  seal  shall  be  prima  facie  evidence  of  the 
refusal  of  the  master  of  an  American  ship  to  receive  destitute  seamen 
on  board,  according  to  the  requirements  of  that  section.  The  maxim 
of  law  might,  therefore,  verj'-  properly  be  here  brought  into  view; 
Expressio  unius  est  exclusio  alterius;  and,  certainly,  an  express  pro- 
vision, in  such  a  case,  would  not  be  without  its  weight  in  giving  a 
construction  to  such  an  omission,  in  a  statute  of  this  sort. 

There  is  no  doubt,  that  certificates  and  other  documents  made 
by  a  public  officer,  entrusted  with  authority  for  that  purpose,  are 
to  be  treated  as  public  documents,  and  as  such,  are  evidence  against  all 
persons  (to  the  extent  of  the  officer's  authority),  of  the  facts,  which  he 
is  directed  to  certify.  But  the  difficulty  in  the  application  of  this 
doctrine  to  the  circumstances  of  the  present  case  is,  that  neither  this 
statute,  nor  any  other  statute  of  the  United  States,  has  made  it  the 
duty  of  the  consul  to  certify  any  such  facts;  and,  therefore,  the  rea- 
son fails.  On  the  other  hand,  the  general  rule  of  law  is,  that  all 
evidence  must  be  given  under  oath,  and  in  the  very  case  in  con- 
troversy. The  exceptions  to  this  rule  are  well  known;  and,  here 
again,  the  difficulty  is  to  bring  the  present  case  within  the  reach  of 
any  of  these  exceptions.  I  do  not  find,  indeed,  that  any  act  of  con- 
gress has  required  consuls  to  take  an  oath  for  the  faithful  performance 
of  the  duties  of  their  office,  although,  in  common  with  all  other  offi- 
cers, they  are  required  to  take  an  oath  to  support  the  constitution  of 
the  United  States.  So,  that  here,  there  is  a  certificate  offered,  not 
only  not  under  oath,  and  not  provided  for  by  any  statute,  but  open  to 
the  grave  objection,  that  it  is  not  even  by  an  officer,  sworn  to  the 
faithful  discharge  of  duty. 

In  addition  to  these  suggestions,  it  is  proper  to  state,  that  it  is 
not  shown  to  bo  any  part  of  the  official  duty  of  a  consul  to  keep 
a  memorandum  of  the  arrival  or  departure  of  American  vessels  at  or 
from  the  port,  for  which  he  is  appointed.  If  it  were  a  part  of  his 
duty  to  do  so,  it  would  by  no  means  follow,  that  his  certificate  of  the 
fact  would  be  evidence  in  a  court  of  justice ;  for  there  would  be  better 
evidence  behind,  that  is  to  say,  his  own  deposition  on  oath,  giving 
the  opposite  party  a  right  of  cross-  (359)  examination.  The  case  of 
Waldon  v.  Coombe  (3  Taunt.  R.  162,)'  shows,  that  the  certificate 
of  a  consul  on  a  matter  of  fact,  clearly  within  the  line  of  his  duty,  is 
not  evidence.  The  case  of  Church  v.  Hubbard  (2  Cranch  R.  237), 
shows  with  what  strictness  the  law  acts  in  relation  to  a  consular 

^See  also  Roberts  v.  Eddington,  4  Esp,  E.  88;  Drake  v.  Marryatt,  1  B.  & 
Cre«w.  473,  478. 

232 


CONSULAR  CASES 

certificate.  It  was  there  rejected,  as  proof  of  the  existence  of  a 
foreign  written  law  annexed  thereto.  On  that  occasion,  Mr.  Chief 
Justice  Marshall,  in  delivering  the  opinion  of  the  Court,  said,  "There 
appears  no  reason  for  assigning  to  their  (consuls)  certificates  respect- 
ing a  foreign  law  any  higher  or  different  degree  of  credit,  than  would 
be  assigned  to  their  certificates  of  any  other  fact."  This  language 
seems  to  me  to  justify  the  conclusion,  that  a  consul's  certificate  of 
any  fact  is  not  evidence  between  third  persons,  unless  expressly  or 
impliedly  so  made  by  statute;  for  it  is  in  derogation  of  the  rules  of 
evidence  of  the  common  law.  In  the  case  of  The  United  States  v, 
Mitchell  (2  Wash.  C.  R.  478),  my  late  brother,  Mr.  Justice  Wash- 
ington (a  truly  able  and  cautious  judge),  admitted  a  consul's  cer- 
tificate to  be  evidence,  that  the  ship's  register  was  deposited  with 
him;  but  he  rejected  it  as  to  all  other  facts.  I  do  not  now  meddle 
with  this  point ;  because  it  is  not  necessary  to  the  decision  of  the  case 
before  the  court ;  and  there  may  be  good  reason  to  hold,  that  the  cer- 
tificate, in  relation  to  an  official  fact,  of  which  the  consul  may  have  ex- 
clusive knowledge,  may  be  properly  admissible,  when,  as  to  all  other 
facts,  it  would  be  inadmissible;  because  they  might  admit  of  proof 
aliunde,  or  even  of  proof  of  a  higher  nature.  If  the  certificate  in 
this  case  had  been  of  the  positive  deposit  of  the  register,  and  were 
admissible  as  evidence  of  that  fact  (as  Mr.  Justice  Washington  held 
it  was),  then  I  should  have  no  doubt,  that  it  was  prima  facie  evidence 
of  the  arrival  of  the  vessel;  for  it  would  be  a  natural  presumption, 
that  it  was  deposited  by  (360)  the  master  in  the  ordinary  discharge 
of  his  duty.  But  where  the  certificate  is  merely  negative  of  the  non- 
deposit,  of  the  register,  it  would  seem  at  most  to  establish  only  its 
own  verity.  It  would  afford  no  presumption  of  the  arrival  and  de- 
parture of  the  vessel;  for  it  would  be  quite  consistent  with  the  fact, 
that  the  vessel  had  never  arrived  at  the  port.  Indeed,  the  presumption 
from  such  non-deposit  would  be,  that  the  vessel  had  never  arrived  at 
the  port ;  for  the  law  will  not  presume  a  violation  of  his  duty  by  the 
master.    It  must  be  established  by  competent  proofs. 

Now,  I  do  not  well  see,  upon  any  established  principles  of  evi- 
dence, how  the  certificate  of  the  consul  of  the  fact  of  the  arrival  or 
of  the  departure  of  the  vessel  was  admissible  as  proof  of  the  fact. 
It  is  not  proof  under  oath.  It  is  not  authorized  by  any  statute.  It 
is  not  made  any  part  of  his  official  duty  to  keep  a  memorandum  or 
record  of  such  facts.  They  are  not  facts  peculiarly  or  officially  within 
his  knowledge.  They  are  susceptible  of  perfect  proof  from  a  great 
variety  of  other  sources.  It  does  not  appear  to  me,  that  it  is  a  case, 
which,  upon  principles  of  public  policy,  or  otherwise,  calls  upon  the 

233 


CONSULAR  CASES 

court  to  relax  the  rules  of  evidence,  which  are  the  great  security  of 
the  rights  and  interests  of  all  persons.  In  the  case  of  Dunbar  v, 
Harvie  (2  Bligh  R.  351),  the  House  of  Lords  held  a  certificate  of  an  of- 
ficer of  excise,  as  to  matters  \\^thin  the  scope  of  his  official  knowledge 
and  duty,  not  admissible  evidence.  And  I  do  not  find,  that  upon  that 
occasion,  any  authorities  were  adduced,  having  the  slightest  tendency 
to  shake  the  rule  as  to  the  non-admissibility  of  the  certificates  of  pub- 
lic officers  generally.  JNIy  judgment  is,  that  the  decision  of  the  dis- 
trict judge  was,  upon  general  principles,  correct;  and  that  the  judg- 
ment ought  to  be  affirmed. 

It  is  unnecessary  to  decide  the  other  point  raised  in  the  case ;  and 
that  is,  whether  the  certificate,  if  otherwise  admissible,  is  not  incom- 
petent evidence,  because  it  is  the  certificate  of  the  plaintiff  on  the 
record.  The  argument  is,  that  though  he  is  a  plaintiff  upon  the 
record,  he  has  no  interest,  as  he  sues  under  (361)  the  authority  of  a 
statute  for  the  sole  benefit  of  the  United  States,  and  he  is  not  liable 
for  costs.  As  to  the  non-liability  for  costs,  I  am  not  aware,  that  that 
point  has  ever  been  directly  decided.  The  plaintiff  here  sues  in  his 
ovm  proper  name  and  person,  and  not  merely  by  his  official  name,  as 
the  postmaster  general  does,  under  the  act  of  1810,  ch.  54,  s.  29,  or 
the  act  of  1825,  ch.  275,  s.  31.  And  there  may  be  a  distinction  in  the 
cases.  Suppose  a  bond  given  to  a  person  "for  the  use  of  the  United 
States,"  and  the  obligee  sues,  is  he  of  course  to  be  exempted  from 
the  payment  of  costs?  That  has  never  yet,  to  my  knowledge,  been 
decided ;  and  I  give  no  opinion  upon  it.  But  the  more  enlarged  ques- 
tion is,  whether  a  party  plaintiff  of  record,  although  he  has  no  in- 
terest in  the  suit,  can  be  admitted  as  a  competent  witness.  I  am  aware, 
that  my  late  brother,  Mr.  Justice  Washington,  in  Willing  v.  Consequa 
(1  Peters  Cir.  Rep.  307),  held  that  he  may.  But  I  also  know,  that 
that  decision  has  not  been  thought  entirely  satisfactory ;  because,  it 
has  been  suggested,  he  is  disabled  by  law,  from  the  mere  circum- 
stance of  his  being  a  party,  without  any  reference  to  his  ultimate  in- 
terest, as  a  party,  to  give  testimony  in  his  own  cause.  Upon  this  also 
I  give  no  opinion. 

There  is  another  question  arising  out  of  the  record,  which  has 
not  been  argued ;  but  upon  which,  nevertheless,  I  wish  to  suggest  my 
own  doubt,  and  that  is,  whether  an  information  by  the  district  attorney 
will  lie  in  this  case.  The  result,  to  which  I  have  come,  renders  it  un- 
necessary to  decide  the  point.  But  I  ought  not  to  disguise,  that  I 
think  it  difficult  to  maintain  an  information,  upon  the  terms  of  the 
statute,  or  for  the  penal  objects,  which  it  is  designed  to  enforce.  I  do 
not  remember  a  single  case,  in  which  an  information  for  a  penalty 

234 


CONSULAR  CASES 

has  been  maintained,  except  where  the  suit  has  been  brought  in  the 
name  of  the  government  itself. 
Judgment  affirmed. 

LEWIS  V.  JEWHTJRST,  (1866,  Great  Britain) 

15  L.  T.  275. 

Cockburn,  Court  of  Queen's  Bench. 

COCKBURN.  (Extract)  The  consul's  certificate,  obtained  in  the 
absence  of  the  seaman  was  not  conclusive  evidence  of  the  fact  of  de- 
sertion. 

LILIAN  M.  VIGUS,  THE,  (1879,  U.  S.— Great  Britain) 
10  Ben.  385;  Fed.  Cases  8,346. 
Choate,  District  Court. 

[Libel  for  wages  of  men  declared  deserters — court  takes  juris- 
diction in  spite  of  British  consuls  protest. 

By  the  English  statute  the  desertion  to  relieve  the  master  must 
be  entered  in  a  certain  manner  and  the  entry  examined,  declared  to 
be  regular,  and  signed  by  the  consul.  The  court  decided  that  the 
entry  had  not  been  properly  made,  although  the  consul  had  declared 
it  so,  and  that  the  consul  could  only  judge  from  the  general  appear- 
ance and  in  so  far  the  act  made  his  opinion  conclusive,  but  that  the 
manner  in  which  the  entry  had  been  made,  might  be  shown  by  evi- 
dence to  be  illegal. 

In  this  case  the  2d  vice-consul  heard  the  dispute  between  the 
crew  and  master  and  ordered  the  crew  back  to  the  ship  to  take  up 
work. — Ed.] 

LILLA,  THE,  (1862,  U.  S.) 

2  Sprague  177;  Fed.  Cases  8,348. 
Sprague,  District  Court. 

[Refers  to  case  of  the  Anne  indirectly. — Ed.] 

LOBRASCIANO'S  ESTATE,  IN  RE,  (1902,  U.  S.— Italy) 
77  N.  Y.  Supp.  1040;  38  Misc.  415. 
SUkman,  Surrogate 's  Court,  New  York. 

(1041)  In  the  matter  of  the  estate  of  Gaetano  Lobrasciano.  Ap- 
plication for  decree  turning  over  the  proceeds  of  the  estate  to  the  con- 
sul general  of  Italy.    Decree  rendered. 

D.  Humphreys,  for  consul  general  of  Italy. 

Burton  C.  Meighan,  for  Union  Sav.  Bank  of  Westchester, 

235 


CONSULAR  CASES 

SILK^MAN,  S.  The  consul  general  of  Italy  applies  to  this  court 
for  a  decree,  under  section  2709  of  the  code,  directing  the  Union 
Savings  Bank  of  "Westchester  to  turn  over  to  liim,  for  the  purpose  of 
administration  and  payment  of  debts,  and  export  of  the  surplus  to  the 
next  of  kin,  who  are  subjects  of  the  kingdom  of  Italy,  certain  moneys 
in  the  possession  of  said  bank  belonging  to  the  decedent,  an  Italian 
subject  who  died  in  this  county  intestate.  No  answer  is  filed,  and  the 
facts  are  admitted.  The  application  would  be  granted  upon  the  au- 
thority of  In  re  Fattosini,  decided  by  this  court  (33  Misc.  Rep.  18, 
67  N.  Y.  Supp.  1119)  without  comment,  were  it  not  for  the  decision 
of  Surrogate  Thomas  in  re  Logiorato,  34  Misc.  Rep.  31,  69  N.  Y. 
Supp.  507,  in  which  he  questions  the  correctness  of  the  decision  of  this 
court  in  the  former  case.  The  great  respect  in  which  the  opinions  oi 
the  learned  surrogate  of  New  York  county  are  held  compels  this 
court  to  review  the  question  as  to  the  authority  of  the  consul  general 
of  Italy,  under  treaty  provisions  and  under  the  law  of  nations,  to  make 
this  application. 

It  was  held  by  this  court,  in  the  Fattosini  case,  that  the  consular 
and  commercial  treaties  between  the  United  States  and  the  kingdom 
of  Italy,  by  virtue  of  the  "Most  Favored  Nation"  clause  of  the  com- 
mercial treaty  of  1871,  embraced  the  privileges  granted  by  the  ninth 
article  of  the  treaty  between  the  United  States  and  the  Argentine  Re- 
public, and  gave  the  consul  general  of  Italy  the  paramount  right  to 
take  possession  of  and  administer  the  estates  of  Italian  subjects  dying 
intestate  within  his  consular  jurisdiction. 

Article  nine  of  the  treaty  with  the  Argentine  Republic  is  in  this 
language : 

"If  any  citizen  of  the  two  contracting  parties  shall  die,  •without  will  or  testa- 
ment, in  any  of  the  territories  of  the  other,  the  consul  general  or  consul  of  the 
nation  to  which  the  deceased  belonged,  or  the  representatives  of  such  consul 
general  or  consul  in  his  absence,  shall  have  the  right  to  intervene  in  the  posses- 
sion, administration,  and  judicial  Liquidation  of  the  estate  of  the  deceased,  con- 
formably with  the  laws  of  the  country,  for  the  benefit  of  the  creditors  and  legal 
heirs."     10  Stat.  1009. 

Surrogate  Thomas  says  in  respect  of  this  provision : 

"It  will  be  observed  that  the  right  assured  to  the  consul  general  is  to  in- 
tervene,' and  this  intervention  is  to  be  'conformably  with  the  laws  of  the  coun- 
try.' To  intervene  is  'to  come  between'  (Webst.  Diet.),  and  the  right  to  inter- 
vene in  a  judicial  proceeding  is  a  right  to  be  heard  with  others  who  may  assert 
demands  or  defenses.  It  is  not  a  right  to  take  possession  of  the  entire  corpus 
of  a  fund  which  is  the  subject  of  the  proceeding.  A  right  to  intervene  'con- 
formably with  the  laws'  of  the  state  of  New  York  is  something  different  from  a 
right  to  set  aside  the  laws  of  the  state,  and  take  from  a  person  who,  by  those  l&yra^ 

236 


CONSULAR  CASES 

it  the  officer  intniBted  with  the  administration  (1042)  of  estates  of  persons  dom- 
iciled here,  and  who  leave  no  next  of  kin  within  the  jurisdiction,  the  right  and 
duty  of  administering  their  assets." 

In  considering  the  conclusions  of  the  learned  surrogate,  we  must 
determine  whether  the  interpretation  given  by  him  to  the  word  "in- 
tervene" is  not  too  restricted.  He  gives  to  it  only  that  meaning  which 
it  has  under  the  state  law  relating  to  state  practice,  to  come  in  and 
be  heard,  or,  more  correcly,  to  come  between  and  be  heard.  He  does 
not  give  to  it  its  full  meaning  in  its  ordinary  sense.  To  intervene  is 
to  come  between ;  * '  and  to  be  heard ' '  is  added  to  the  definition  only 
by  local  legal  signification  and  usage.  It  is  true  that,  in  the  interpre- 
tation of  treaties,  the  same  general  rules  are  adopted  which  apply  to 
the  construction  of  statutes,  contracts,  and  written  instruments  gen- 
erally, in  order  to  effect  the  purpose  and  intention  of  the  makers.  Wil- 
son v.  Wall,  6  Wall.  83,  18  L.  Ed.  727 ;  U.  S.  v.  Rauscher,  119  U.  S. 
407,  7  Sup.  Ct.  234,  30  L.  Ed.  425.  Nevertheless,  there  is  this  differ- 
ence :  That  the  language  of  treaties  in  most  instances,  as  it  comes  for 
interpretation  or  construction,  is  but  a  translation  from  a  foreign 
tongue,  and  there  would  be  great  danger  of  violating  the  spirit  of  such 
an  instrument  were  we  to  bear  too  heavily  upon  the  local  technical 
definition  and  use  of  a  word.  See  U.  S.  v.  Percheman,  7  Pet.  51,  8 
L.  Ed.  604.  When  a  treaty  admits  of  two  constructions,  one  re- 
strictive of  the  rights  that  may  be  claimed  under  it,  and  the  other 
liberal,  the  latter  is  to  be  preferred.  Shanks  v.  Dupont,  3  Pet.  242,  7 
L.  Ed.  666;  Hauenstein  v.  Lynham,  100  U.  S.  483,  25  L.  Ed.  628. 
Treaties  may  be  construed  on  the  principle  of  instruments  in  pari 
materia.  Shanks  v.  Dupont,  3  Pet.  255,  7  L.  Ed.  666.  And  it  would 
seem  a  proper  application  of  this  principle  to  look  into  the  legislation 
of  the  high  contracting  parties  upon  the  subject,  as  well  as  to  look 
to  what  view  the  executive  branches  of  the  government  have  taken, 
for,  if  they  have  already  interpreted,  courts  will  not  set  up  to  the  con- 
trary.   Foster  v.  Neilson,  2  Pet.  253,  7  L.  Ed.  415. 

That  treaties  should  be  interpreted,  in  case  of  doubt,  according 
to  the  tendency  of  international  law,  commends  itself  as  a  reasonable 
legal  proposition. 

Therefore,  looking  at  the  laws  of  the  governments  parties  to  the 
treaty,  not  because  they  control  in  respect  to  the  matter  before  us, 
but  as  a  guide  only  to  the  spirit  and  meaning  of  the  treaty  under  con- 
sideration, we  find  the  following  provision  in  the  United  States  revised 
statutes  (section  1709)  : 

"Sec.  1709.    It  shall  be  the  duty  of  consuls  and  vice-consuls,  where  the  laws 
of  the  country  permit: 

"First.     To  take  possession  of  the  personal  estate  left  by  any  citizen  of  the 

237 


CONSULAR  CASES 

United  States,  other  than  seamen  belonging  to  any  vesiel,  who  ihall  die  withia 
their  consulate,  leaving  there  no  legal  representatives,  partner  in  trade,  or 
trustee  by  him  appointed  to  take  care  of  his  effects. 

' '  Second.  To  inventory  the  same  with  the  assistance  of  two  merchants  of  the 
United  States,  or,  for  want  of  them,  of  any  others  at  their  choice. 

' '  Third.  To  collect  the  debts  due  the  deceased  in  the  country  where  he  died, 
and  pay  the  debts  due  from  his  estate  which  he  shall  have  there  contracted. 

' '  Fourth.  To  sell  at  auction,  after  reasonable  public  notice,  such  part  of  the 
estate  as  shall  be  of  a  perishable  nature,  and  such  further  part,  if  any,  (1043)  ^s 
shall  be  necessary  for  the  payment  of  his  debts,  and,  at  the  expiration  of  one  year 
from  his  decease,  the  residue. 

' '  Fifth.  To  transmit  the  balance  of  the  estate  to  the  treasury  of  the  United 
States,  to  be  holden  in  trust  for  the  legal  claimant ;  except  that  if  at  any  time 
before  such  transmission  the  legal  representative  of  the  deceased  shall  appear  and 
demand  his  effects  in  their  hands  they  shall  deliver  them  up,  being  paid  their  fees, 
and  shall  cease  their  proceedings." 

And  in  the  laws  of  the  kingdom  of  Italy  relating  to  the  functions 
and  attributes  of  consuls,  this  provision: 

* '  Art.  25.  In  the  event  of  the  death  of  an  Italian,  the  consuls  can  execute 
all  and  any  kind  of  deeds  of  protection,  release,  or  administration  in  the  in- 
terests of  the  deceased  or  his  estate." 

In  Wheat.  Int.  Law,  p.  175,  the  principle  is  laid  down : 

' '  The  consuls  have  authority  and  power  to  administer  on  the  estates  of  their 
fellow-subjects  deceased  within  their  territorial  consulate. ' ' 

In  the  matter  of  Parsons,  deceased.  Secretary  of  State  Marcy,  in 
1855.  writing  officially  to  Mr.  Aspinwall,  consul  general  at  London, 
says : 

"The  consuls  of  the  United  States  are  authorized  and  requested  to  act  as 
administrators  on  the  estates  of  all  citizens  of  the  United  States  dying  inter- 
tate  in  foreign  countries,  and  leaving  no  legal  representative  or  partner  in  trade. 
Indeed,  this  is  one  of  the  most  sacred  and  responsible  trusts  imposed  by  their 
office,  and  in  this  respect  they  directly  represent  their  government  in  protecting 
the  rights  and  interests  of  the  representatives  of  deceased  citizens.  The  consul 
of  the  Unite<i  States,  therefore,  was  the  only  person  who  could  legally  touch  the 
proj)erty  left  by  the  deceased,  Parsons:  it  was  his  duty  to  deposit  the  proceeds 
thereof  in  the  treasury  of  the  United  States,  there  to  await  the  decision  of  the 
proj>er  authorities  as  to  its  final  disposition."     Whart.  Law  Dig.  782. 

In  the  matter  of  Chadwick,  deceased,  arising  in  1875,  Mr.  Cad- 
walader,  acting  secretary  of  state,  representing  his  government,  writes: 

"In  the  case  of  American  citizens  dying  abroad,  it  is  made  by  law  the 
duty  of  the  T'nited  States  consul  within  whose  jurisdiction  such  death  occurs  to 
take  charge  of  the  effects  of  the  deceased,  cause  an  inventory  of  such  effects  to  b* 
taken,  and  di8j)n8e  of  any  that  may  be  deemed  perishable  by  sale  at  public  auction, 
and  the  proceeds  of  which,  together  with  all  other  property  and  moneys  of  the 

238 


CONSULAR  CASES 

deceased,  he  is  to  hold  subject  to  the  demand  of  the  legal  representatives  of  the 
deceased.  In  case  such  representatives  do  not  appear  and  demand  the  estate 
within  a  year,  the  consul  is  required  to  transmit  the  effects  to  the  treasury  de- 
partment, there  to  await  final  distribution  to  the  parties  entitled  to  receive 
them." 

And  again  the  same  distinguished  lawyer,  writing  officially,  says: 

"When  a  citizen  of  the  United  States,  not  a  seaman,  dies  abroad  without 
leaving  a  will,  it  is  made  the  duty  of  a  consul  to  take  charge  of  any  property  he 
may  leave  in  the  consular  district,  and,  after  paying  the  debts  of  the  deceased 
contracted  there,  to  send  the  proceeds  of  the  property  at  the  expiration  of  a 
year  to  the  treasury  of  the  United  States,  there  to  be  held  in  trust  for  the  legal 
representative.  In  case,  however,  a  legal  representative  shall  appear  and  demand 
the  effects,  the  consul  is  required  to  deliver  the  property  to  him,  after  deducting 
the  lawful  fees.  The  statute  on  this  subject  may  be  found  in  section  1709  of  the 
revised  statutes  of  the  United  States." 

(1044)  Cushing,  attorney  general  in  1856,  held  that  consuls 
under  the  United  States  law,  in  the  absence  of  treaty  authority,  could 
not  intervene  as  of  right  in  the  administration  of  a  decedent's  estate 
except  by  way  of  surveillance.  8  Op.  Atty.  Gen.  98 ;  Whart.  Law  Dig. 
784,  785. 

Attorney  General  Black  in  1859  held  that  the  United  States  was 
not  bound  by  treaty  with  Peru  to  pay  a  consul  of  that  country,  the 
value  of  property,  belonging  to  a  deceased  Peruvian,  M^hich  the  consul 
was  entitled  to  administer,  but  which  had  been  unjustly  detained  and 
administered  by  a  local  public  administrator,  and  that  the  remedy  of 
the  consul  was  in  the  courts.    9  Op.  Atty.  Gen.  383. 

While  United  States  statutes  are  to  be  considered  in  arriving  at 
the  spirit  and  intention  of  a  treaty,  I  apprehend  that  state  statutes  are 
not  so  entitled.  State  legislatures  are  only  remotely  connected  with 
the  treaty-making  power,  and  their  right  to  negotiate  treaties  is  ex- 
pressly prohibited  by  the  federal  constitution. 

"All  treaties  made,  or  which  shall  be  made  under  the  authority  of  the 
United  States  shall  be  the  supreme  law  of  the  land,  and  the  judges  in  every 
state  shall  be  bound  thereby,  anything  in  the  constitution  or  laws  of  any  state  to 
the  contrary  notwithstanding."     Const,  art.  6,  §  3. 

This  plain  language  compels  the  elimination  of  all  consideration 
of  state  laws  while  in  the  business  of  construing  a  treaty.  State  law 
must  yield,  and  adjust  itself  to  the  spirit  and  intent  of  a  treaty.  Ware 
V.  Hylon,  3  Dall.  199,  1  L.  Ed.  568;  Hauenstein  v.  Lynham,  100  U. 
S.  483,  25  L.  Ed.  628;  In  re  Parrott  (C.  C.)  1  Fed.  481.  Federal  laws 
and  treaties  must  be  read  together,  and  reconciled  if  possible.  Chew 
Heong  V.  U.  S.,  112  U.  S.  536,  5  Sup.  Ct.  255,  28  L.  Ed.  770;  Taylor 
V.  Morton,  2  Curt.  454-457,  Fed.  Cas.  No.  13,799;  Ropes  v.  Clinch, 

239 


CONSULAK  CASES 

8  Blatchf.  309,  Fed.  Cas.  No.  12,041.  It  in  no  sense  follows  that 
treaties  and  state  statutes  are  to  be  reconciled.  If  that  were  attempt- 
ed, there  might  have  to  be  as  many  reconcilements  as  there  are  states 
in  the  Union.  I  find  no  federal  authority  wherein  the  possibility  that 
the  exercise  of  privileges  of  prerogatives  imder  a  treaty  might  inter- 
fere with  the  pro\'isious  of  state  statutes  or  practice  has  been  even  dis- 
cussed. And  other  than  the  Louisiana  case  cited  by  Surrogate  Thom- 
as, and  another  Louisiana  case  to  which  I  shall  later  refer,  I  find  no 
state  authorities.  On  the  contrary,  I  find  that  the  United  States  was 
compelled  to  pay  the  loss  awarded  by  international  arbitrators  where 
the  surrogate  of  New  York  county,  in  violation  of  the  treaty  with 
Peru,  failed  to  award  administration  to  the  Peruvian  consul,  but  gave 
it  instead  to  the  public  administrator.  In  re  Vergil,  4  Moore  inter 
Arb.  390.    The  Peruvian  treaty  provided : 

' '  That  in  the  absence  of  the  legal  heirs  or  representatives,  the  consuls,  or 
vice-consuls  of  either  party  shall  be  ex  officio  the  executors  or  administratori 
of  the  citizens  of  their  nation  who  may  die  within  their  consular  jurisdiction." 
10  Stat.  945,  art.  39. 

I  quote  from  the  unanimous  decision  of  the  four  arbitrators : 

' '  In  the  month  of  May,  1857,  the  Peruvian  citizen  Jean  del  Carmen  Vergil, 
returning  from  New  York  to  the  Pacific,  died  on  board  the  steamer  Empire 
(1045)  City.  The  agents  of  the  company  to  which  that  steamer  belonged  placed 
his  personal  effects  in  the  hands  of  the  'public  administrator  of  the  city  of  New 
York.'  The  minister  of  Peru  in  the  United  States,  in  July  of  the  same  year, 
represented  to  the  secretary  of  state  that  the  Peruvian  consul  in  the  same  city 
had  made  proper  representations  to  entitle  him  to  the  charge  of  these  effects 
under  existing  treaty  stipulations,  but  that,  failing  to  secure  the  rights  therein 
guaranteed  to  him,  it  was  necessary  to  interpose  diplomatic  offices.  The  secretary 
of  state  immediately  instructed  the  law  officer  of  the  government  of  the  United 
States  in  the  city  of  New  York  'to  take  such  steps  as  would  secure  compliance 
with  the  provisions  of  the  treaty. '  The  conflicting  claims  of  the  public  adminis- 
trator and  of  the  consul  of  Peru  appear  to  have  been  heard  before  the  surro- 
gate 's  court  of  New  York,  at  different  times,  up  to  the  2d  of  December,  1858, 
after  which  no  record  is  found  of  further  judicial  investigation,  although  it  con- 
tinued to  be  the  subject  of  diplomatic  correspondence  up  to  December,  1862. 
When  the  attention  of  the  secretary  of  state  (Mr.  Cass)  was  first  invited  to 
this  case,  no  objection  was  presented  to  the  views  expressed  by  Mr.  Osma  in  ref- 
erence to  the  Peruvian  consul's  right  to  take  possession  of  Vergil's  property 
under  the  treaty  of  26th  July,  1851 ;  so  far  from  it,  it  will  have  been  observed, 
that  prompt  measures  were  taken  to  secure  the  observance  of  the  stipulations  of 
the  thirty-ninth  article  of  that  treaty.  When  it  had  become  evident  that  the 
proceedings  were  unsuccessful,  the  question  was  referred  to  the  attorney  gen- 
eral of  the  United  States  '  for  his  opinion  as  to  the  requisite  measures  to  be  pur- 
sued, in  order  to  give  effect  to  the  stipulations  of  the  treaty.'  That  officer  de- 
clared that  the  detaining  of  the  goods  of  the  deceased  from  the  Peruvian  consul  was 
unlawful,  and  a  wrong  which  may  justly  be  complained  of.     He  thought,  how- 

240 


CONSULAR  CASES 

ever,  that  the  Peruvian  consul  and  minister  were  in  fault  in  endeavoring  to  ob- 
tain '  redress  where  there  is  no  authority  to  furnish  it, '  and  he  added  that  the 
judicial  authorities  would  have  given  them  this  justice  'for  the  asking.'  Dis- 
missing any  further  question  upon  the  principles  involved  in  this  claim,  in  re- 
gard to  where  there  is  no  disagreement  among  the  commissioners,  it  remains  only 
to  arrive  at  a  just  measure  of  the  value  of  Vergil's  effects  as  they  were  delivered 
to  the  public  administrator,  and  claimed  by  the  consul  of  Peru." 

While  the  forms  of  expression  in  the  numerous  treaties  of  the 
United  States  widely  differ,  nevertheless  governments  in  their  negotia- 
tions acted  according  to  well-defined  principles,  and  had  in  view  spe- 
cific objects,  and,  although  the  language  varies  in  the  different  treat- 
ies, the  privileges  and  prerogatives  given  and  obtained  in  respect  to 
the  same  subject  are  in  furtherance  of  the  same  common  principle  and 
object.  So,  where  provisions  are  found  in  one  treaty  of  doubtful  im- 
port, we  are  entitled  to  look  to  the  provisions  of  treaties  with  other 
nations,  on  the  same  subject,  which  are  free  from  doubt,  or  which, 
having  been  construed,  will  aid  us  in  determining  the  true  spirit  and 
meaning  of  that  which  is  in  doubt.  It  is  true  that  in  AspinwaU  v. 
Queen's  Proctor,  2  Curt.  Ecc.  241,  decided  in  1839,  the  English 
prerogative  coiu't  held  contrary  to  the  view  of  international  law  for 
which  I  contend.  This  case  was  decided  at  a  period  when  that  clause 
of  the  treaty  between  England  and  Spain  which  gave  to  their  respec- 
tive consuls  the  right  to  administer  upon  the  estates  of  their  coun- 
try's subjects  was  being  freely  violated  by  both  parties.  It  was  also 
before  the  policy  of  the  nations  in  respect  to  the  authority  of  consuls 
had  taken  form  so  as  to  become  a  necessary  part  of  the  reciprocal 
relations  between  nations,  and  parliament  had  not  by  act  at  this  time 
adopted  a  policy,  as  had  the  United  States.  The  position  taken  by 
the  English  judge  was  in  direct  conflict  with  the  opinion  of  Secretary 
(1046)  Marcy  above  referred  to,  and  I  believe  in  conflict  with  the 
present  interpretation  of  international  law  by  all  continental  Europe. 
In  this  country  I  find  but  one  published  authority,  other  than  that  oi 
Surrogate  Thomas,  agreeing  with  the  English  view,  and  that  is  the 
case  of  Lanfear  v.  Ritchie,  9  La.  Ann.  96,  in  which  case  the  court,  in 
an  opinion  of  but  a  few  lines,  asserts  the  sovereignty  of  the  state,  and 
denies  the  right  of  federal  authorities  to  interfere  in  probate  matters. 
This  case  as  an  authority  suffered  severely  in  the  early  sixties,  and  it 
seems  now  of  more  than  doubtful  authority,  since  the  decision  of  the 
supreme  court  of  Louisiana  in  Succession  of  Rabasse,  47  La.  Ann. 
1454,  17  South.  867,  49  Am.  St.  Rep.  433,  decided  in  June,  1895,  re- 
versing the  civil  district  court  (the  court  of  probate),  and  holding 
that  the  provisions  of  the  treaty  with  Belgium,  the  stipulations  of 
which  were  applicable  to  France,  giving  the  consul  the  right  to  appear 

241 


CONSULAR  CASES 

personally,  or  by  delegate,  in  all  proceedings,  in  behalf  of  absent  or 
minor  heirs,  repealed  the  authority  given  by  law  to  the  probate  judge 
to  appoint  counsel  or  guardian  ad  litem  to  absent  heirs.  In  this  case 
there  was  a  will  and  an  executor,  and  the  right  to  administer  did  not 
arise.  Judge  Ellis  of  the  civil  district  court,  whose  decision  was  re- 
versed, took  much  the  same  view  as  is  taken  by  the  surrogate  in  the 
Logiorato  case  upon  the  subject  of  state  authority.  lie  said  referring 
to  the  treaty  provision  : 

"  I  do  not  understand  that  its  object  or  its  effect  was  or  is  to  strike  down 
the  authority  or  jurisdiction  of  the  local  probate  tribunal,  and  to  substitute 
therefor,  in  the  contingency  named,  the  power  and  authority  of  a  resident  consul 
to  be  by  him  exercised  i>er8onally,  or  by  a  selected  delegate.  In  this  succession, 
during  the  progress  of  its  settlement,  should  the  consul  of  France  or  his  delegate 
find  it  necessary  to  appear  in  behalf  of  absent  or  minor  heirs  domiciled  in  France, 
the  treaty  stipulation,  which  confers  judicial  standing  quoad  hoc  on  the  consul 
or  his  delegate,  would  be  respected  within  the  limits  of  the  contingencies  named 
in  said  treaty;  but,  as  a  probate  judge  holding  my  authority  from  a  sovereign 
state  of  the  union,  T  do  not  recognize  the  right  or  power  of  the  consul,  either  to 
take  charge  of  the  administration  personally,  or  by  delegate,  nor  his  right  to  in- 
dicate what  member  of  the  bar  I  shall  appoint  to  represent  the  absent  heirs  of  the 
deceased.  The  property  of  the  succession  is  all  here;  the  deceased  lived  and  died 
domiciled  here.  There  may  be  domestic  creditors,  or  domestic  heirs  legal  or  in- 
stituted. Our  state  laws  provide  fully  for  the  protection  of  the  interests  of  non- 
resident parties,  and  the  succession  is  in  the  hands  of  a  native  testamentary  ex- 
ecutor. I  hardly  deem  it  worth  while  to  refer  to  the  constitutional  right  of  the 
government  of  the  United  States  to  regulate  probate  matters,  or  the  settlement  of 
successions  in  the  several  states  of  the  Union.  There  can  be,  under  our  system  of 
federal  government,  no  such  things  as  federal  probate  jurisdiction  within  any  of 
the  states,  i.  e.,  outside  of  the  District  of  Columbia  and  the  several  territories. 
The  probate  jurisdiction  was  not  conferred  by  the  people,  in  their  constitution, 
upon  the  general  government,  and  ergo  it  was  reserved  by  the  states  and  the 
people  thereof  res{>ectively.  It  would  not  be  in  the  power  of  the  general  govern- 
ment to  withdraw  this  authority  from  the  states,  or  any  of  them,  by  means  of  a 
treaty  with  a  foreign  government,  and  therefore  to  construe  the  15th  article  of 
said  treaty  C16  Stat.  763)  as  is  here  contended  by  the  representative  of  the 
consul  of  France  would  be  to  announce  its  indirect  nullity  because  notative  of  our 
federal  constitution.  I  do  not  so  construe  it;  it  is  a  useful  and  beneficial  pro- 
vision, and  will  be  respected  in  its  letter  and  spirit  whenever  the  occasion  arisen 
to  which  it  has  application.  I  do  not  assume,  nor  can  I,  that  it  has  ever  been  the 
intention  (1047)  '^^  ^^^  ^'^h  contracting  powers  to  said  treaty  that  the  consuls  of 
either  should  have  any  other  powers  quoad  the  matters  referred  to  in  said  article 
15  than  those  of  full  capacity  to  appear,  and  obtain  from  the  local  probate  court! 
the  necessary  processes  for  the  provisional  care,  protection,  and  preservation  ot 
the  minor  heirs,  or  proy>erty  of  their  countrymen  dying  abroad  under  the  condi- 
tions  stated  in  said  article." 

The  supreme  court  of  Louisiana  in  reversing  the  civil  district 
court  say: 

'If  the  treaty  is  susceptible  of  the  construction  of  the  appellant,  the  result 

242 


CONSULAR  CASES 

will  be  to  avoid  the  appointment  of  an  attorney  for  the  absent  heirs,  and  re- 
quire the  recognition  of  the  appellant  as  the  delegate  of  the  French  consul.  In 
our  view,  the  stipulation  in  this  treaty  puts  the  delegate  in  the  position  of  an 
agent  of  the  French  heirs,  with  the  same  effect  as  if  he  held  their  mandate  to  rep- 
resent them  as  heirs.  That  was  the  manifest  purpose,  and  the  language  of  the 
treaty  plainly  expresses  that  intention.  There  is  no  power  to  appoint  an  attorney 
for  absent  heirs  when  the  heirs  are  present  and  represented.  *  *  *  It  is  idle 
to  call  in  question  the  competency  of  the  treaty-making  power,  nor  do  we  think 
any  question  can  be  raised  that  the  subject  of  this  treaty  under  discusBsion  here 
is  properly  within  the  scope  of  the  power.  That  subject  is  the  right  of  French 
subjects  to  be  represented  here  by  the  consul  of  their  country.  On  that  subject 
the  treaty  provision  is  plain.  The  treaty  by  the  organic  law  is  the  supreme  law 
of  the  land,  binding  all  courts,  state  and  federal.  *  *  •  The  treaty  discloses 
no  purpose  to  require  our  courts  to  appoint,  as  the  attorney  for  absent  heirs,  the 
delegate  of  the  French  consul.  Its  purpose  is  accomplished  by  placing  the  dele- 
gate before  the  court  as  representing  the  absent  heirs,  and  precluding  the  ap« 
pointment  of  any  attorney  to  represent  them." 

Having  discussed  the  principles  of  the  interpretation  and  con- 
struction of  treaties  at  some  length,  let  us  look  at  the  particular  lan- 
guage before  us.     Consuls  are  given  the  right  to  intervene  "in  the 
possession."     We  must  give  this  form  of  expression  some  weight  and 
some  effect.    It  would  seem  that  the  only  intelligent  construction  would 
be  that  the  consul  had  the  right  to  come  between  the  property  and  the 
possession  by  some  one  else  than  himself,  with  the  result  that  posses- 
sion must  necessarily  be  landed  in  him.    To  intervene  in  the  adminis- 
tration is  secondary ;  he  first  comes  into  possession,  and  then  he  comes 
between  the  administration  and  the  person  who  might  have  a  right 
thereto  under  state  law.     This  is  giving  to  the  word  "intervene"  its 
ordinary  definition,  and  avoiding  its  local  legal  significance.     En- 
deavoring to  ascertain  the  spirit  and  intention  of  the  language  "to 
intervene  in  the  possession,  administration  and  judicial  liquidation 
of  the  estate  of  the  deceased,"  we  must  have  regard  for  the  entire  con- 
text, and  we  may  not  select  a  single  word  for  definition.    It  must  not 
be  viewed,  as  would  a  New  York  statute,  from  our  own  local  stand- 
point.   It  must  be  borne  in  mind  that  there  can  be  but  one  correct 
construction  of  a  contract;  therefore,  as  we  construe,  so  must  the  au- 
thorities of  Italy;  consequently,  we  must  view  it  from  the  Italian, 
as  well  as  our  own,  standpoint,  and  from  both  see  what  was  intended 
to  be  accomplished  by  the  use  of  the  words  quoted.    This  can  be  done 
in  no  better  way  than  by  studying  the  policy  of  Italian  law  on  the 
subject,  and  at  the  same  time  realizing  that  the  estates  of  foreign  sub- 
jects are  to  be  distributed  according  to  the  law  of  their  own  country, 
(1048)   and  not  ours,  and  in  such  distribution  the  consul  is  more 
competent  to  execute  the  laws  of  his  country,  of  which  he  must  be  pre- 
sumed to  have  particular  knowledge,  while  our  courts,  on  the  contrary, 

243 


CONSULAR  CASES 

are  not  presumed  to  be  learned  in  foreign  laws,  and  cannot  take  ju- 
dicial notice  of  them.  If  the  words,  "conformably  with  the  laws  of 
the  country  for  the  benefit  of  the  creditors  and  legal  heirs, ' '  relate  to 
rights,  and  not  to  procedure,  then  the  estate  of  a  foreign  subject  would 
have  to  be  distributed  in  accordance  with  our  state  statutes  of  distribu- 
tion. This  certainly  could  not  have  been  the  intention  of  the  contract- 
ing powers.  They  could  not  have  intended  to  take  from  their  own 
subjects  the  rights  which  they  would  have  enjoyed  had  their  intestate 
died  at  home,  and  to  permit  them  to  share  according  to  a  foreign 
statute  of  distribution.  The  right  that  is  given  by  the  treaty  is  the 
possession  and  paramount  right  of  administration,  and  this  is  not 
limited  by  the  words  "conformably  with  the  laws  of  the  country  for 
the  benefit  of  the  creditors  and  legal  heirs."  These  latter  words  pro- 
vide merely  for  the  procedure.  The  consul,  having  been  given  the 
right  of  possession,  is  then  required  to  administer  the  estate  in  con- 
formity with  the  local  laws  in  reference  to  such  matters.  This  inter- 
pretation gives  full  protection  to  the  domestic  creditors,  and  that  is 
all  that  the  policy  of  the  state  law  demands.  The  desire  of  state  courts 
is  to  protect  resident  creditors,  and  after  that  is  done  they  have  no 
further  concern  except  to  deliver  the  property  into  the  hands  of  the 
oflficers  of  the  state  to  which  it  properly  belongs.  There  is  no  prin- 
ciple known  to  American  law  requiring  our  courts  to  protect  foreign 
subjects  against  the  claims  of  duly  accredited  representatives  of  their 
own  government. 

I  am  satisfied  that,  both  under  a  fair  interpretation  of  the  treaty 
provisions  as  well  as  under  the  general  law  of  nations  as  recognized 
by  the  United  States,  the  Italian  consul  is  entitled  to  the  possession, 
for  the  purposes  of  administration,  of  the  property  of  all  Italian  sub- 
jects dying  intestate  within  his  consular  jurisdiction.  Decreed  accord- 
ingly. 

LOGIORATO'S  ESTATE,  IN  RE,  (1901,  U.  S.— Italy) 

69  N.  Y.  Supp.  .507;  34  Misc.  .31. 

Thomas,  Surrogate's  Court,  New  York, 

(508)  Application  by  the  consul  general  of  Italy  for  letters  of  ad- 
ministration on  the  estate  of  Giuseppe  Logiorato,  sometimes  known  as 
Joseph  Gerrodo,  deceased.  Letters  granted.  Italy  Consular  Treaty 
1878,  art.  17,  declares  that  consular  officers  of  such  country  shall  enjoy 
all  the  rights,  prerogatives,  and  privileges  granted  to  those  of  the  same 
grade  of  the  most  favored  nations. 

D.  Humphreys,  for  petitioner. 

THOMAS,  S.     The  decedent  was  at  the  time  of  his  death  a  resi- 

244 


CONSULAR  CASES 

dent  of  this  country.  He  died  intestate,  and  left  assets  in  this  coun- 
try in  a  small  amount.  He  was  a  citizen  and  subject  of  the  kingdom 
of  Italy,  and  all  of  his  next  of  kin  are  residents  of  Italy.  He  left  no 
next  of  kin  residing  in  the  state  of  New  York,  and  it  is  alleged  in 
the  petition  that  there  are  no  creditors.  The  petitioner  is  the  consul 
general  of  the  kingdom  of  Italy.  The  public  administrator,  though 
duly  cited,  makes  default.  The  petitioner  asserts  a  right  to  admin- 
istration without  giving  any  security,  and  in  preference  to  the  pub- 
lic administrator,  and  bases  his  claim  on  the  facts  as  to  treaty  pro- 
visions in  the  treaties  between  the  United  States  and  Italy,  recited  in 
the  opinion  of  the  learned  surrogate  of  Westchester  county  in  the 
recent  case  of  In  re  Fattosini,  33  Misc.  Rep.  18,  67  N.  Y.  Supp.  1119, 
and  on  the  rule  asserted  in  that  decision.  The  application  will  be 
granted  on  the  ground  that  no  relative,  or  guardian  of  a  minor  rela- 
tive, and  no  creditor  or  public  administrator,  will  consent  to  become 
administrator,  and  the  petitioner  is  a  legally  competent  person  to  act 
as  such  (Code  Civ.  Proc.  §  2660)  ;  but  I  am  unwilling  to  base  my 
conclusion  on  the  reasoning  of  the  case  cited  or  to  adopt  it  as  a  pre- 
cedent. I  agree  that  a  solemn  treaty  of  the  United  States  with  Italy 
is  of  binding  force,  and  that  it  must  control  all  courts,  even  to  the 
extent  of  ousting  them  of  jurisdiction  or  of  changing  the  rules  of  their 
procedure,  but  in  order  to  accomplish  this  result  their  meaning  and 
purpose  must  be  clear  and  explicit.  Conceding  that,  under  the  "most 
favored  nation"  clause  in  the  provision  of  the  treaty  with  Italy  re- 
lating to  the  rights,  prerogatives,  immunities,  and  privileges  of  con- 
suls general,  the  stipulation  contained  in  the  treaty  of  July  27,  1853 
(10  Stat.  1009),  with  the  Argentine  republic,  becomes  a  part  of  the 
treaty  with  Italy,  I  do  not  find  (509)  in  that  stipulation  any  justifi- 
cation for  the  conclusion  sought.    It  is  in  the  following  words : 

"Art.  9.  If  any  citizen  of  the  two  contracting  parties  shall  die  without  will 
or  testament  in  any  of  the  territories  of  the  other,  the  consul-general  or  consul 
of  the  nation  to  which  the  deceased  belonged,  or  the  representative  of  such  con- 
sul-general or  consul  in  his  absence,  shall  have  the  right  to  intervene  in  the  pos- 
session, administration  and  judicial  Liquidation  of  the  estate  of  the  deceased,  con- 
formably with  the  laws  of  the  country,  for  the  benefit  of  the  creditors  and  legal 
heirs." 

It  will  be  observed  that  the  right  assured  to  the  consul  general 
is  to  "intervene,"  and  that  this  intervention  is  to  be  "conformably 
with  the  laws  of  the  country."  To  intervene  is  to  "come  between" 
(Webst.  Diet.),  and  the  right  to  intervene  in  a  judicial  proceeding 
is  a  right  to  be  heard  with  others  who  may  assert  demands  or  de- 
fenses.   It  is  not  a  right  to  take  possession  of  the  entire  corpus  of  a 

245 


CONSULAR  CASES 

fund  which  is  the  subject  of  the  proceeding.  A  right  to  intervene 
"conformably  with  the  laws"  of  the  state  of  New  York  is  something 
different  from  a  right  to  set  aside  the  laws  of  the  state,  and  take 
from  a  person  who.  by  those  laws,  is  the  officer  intrusted  with  the  ad- 
ministration of  estates  of  persons  domiciled  here,  and  who  leave 
no  next  of  kin  within  the  jurisdiction,  the  right  and  duty  of  admin- 
istering their  assets.  And,  when  the  laws  of  the  state  require  an  ad- 
ministrator to  give  a  bond  to  be  measured  by  the  value  of  assets, 
nothing  in  the  treaty  provision  grants  to  the  consul  an  immunity  from 
this  requirement  to  be  obtained  merely  by  asserting,  in  substance,  that 
he  has  no  knowledge  of  the  existence  of  any  debts.  The  eminent  text 
^^Titers  cited  in  the  opinion  of  the  learned  surrogate  do  not  intimate 
that  the  courts  of  civilized  states,  acting  under  general  laws  framed 
for  the  protection  of  foreigners  equally  with  their  own  citizens,  must 
grant  administration,  contrary  to  the  terms  of  those  laws,  to  consuls, 
under  any  circumstances  whatever.  Thus,  in  "Wools.  Int.  Law,  p.  154, 
the  learned  writer,  in  enumerating  the  duties  of  consuls,  includes  the 
power  "of  administering  on  the  personal  property  left  within  their 
consular  districts  by  deceased  persons,  when  no  legal  representa- 
tive is  at  hand,  and  when  law  or  treaty  permits,  and  thus  of  repre- 
senting them,  it  may  be.  before  the  courts  of  the  district."  Consuls 
may  accept  administration,  but  no  right  to  override  local  law  is  sug- 
gested. See,  also.  Wheat.  Int.  Law  (3d  Ed.)  167,  168.  A  similar 
question  was  passed  upon  by  the  supreme  court  of  Louisiana  in  1854, 
in  Succession  of  Thompson,  9  La.  Ann.  96.  In  that  case  administra- 
tion was  granted  to  the  official  curator,  under  the  laws  of  Louisiana, 
of  a  decedent  domiciled  in  the  state,  and  leaving  property  within  the 
jurisdiction  of  the  court.  The  petitioner  was  the  vice  consul  of  the 
kingdom  of  Sweden  and  Norway,  who  represented  that  the  deceased 
was  a  Swede  by  birth,  and  at  the  time  of  his  death  was  a  subject  of 
the  king  of  Sweden.  On  this  ground  he  claimed  the  right,  in  his 
capacity  of  consul,  to  take  the  succession  out  of  the  hands  of  the  de- 
fendant, who  was  the  duly-appointed  administrator.  This  right,  he 
alleged,  he  was  entitled  to  exercise  under  the  laws  of  nations,  the  laws 
of  the  United  States,  (510)  and  by  virtue  of  treaties  entered  into  be- 
tween the  United  States  and  the  kingdoms  of  Sweden  and  Norway. 
The  court  said : 

"The  right  c-laimed  is  incompatible  with  the  sovereignty  of  the  state,  whose 
juria'liction  extendH  ovor  the  projicrty  of  foreigners  as  well  as  citizens  found 
within  its  limits.  Thf>  flisposition  of  the  estates  of  foreigners  has  been  mads 
the  subject  of  special  legislation,  and  no  treaty  or  law  of  the  United  States 
exists  wffifeh,  as  the  paramount  law,  confers  any  such  right  as  is  claimed  by  the 

246 


CONSULAR  CASES 

petitioner,  nor  are  we  aware  of  any  principle  of  the  law  of  nations  which  would 
entitle  the  petitioner  to  call  in  question  the  authority  of  our  laws  on  that  sub- 
ject." 

In  Aspinwall  v.  Queen's  Proctor,  2  Curt.  241,  244,  an  application 
was  made  in  the  English  prerogative  court  of  Canterbury  by  the 
American  consul  to  take  administration  of  the  goods  of  an  American 
subject  domiciled  in  America,  who  died  in  itinere,  leaving  personal 
property  in  the  jurisdiction  of  the  court.  The  application  was  denied 
in  the  opinion  of  Sir  Herbert  Jenner  on  what  appeared  to  me  to  be 
satisfactory  grounds.  Among  other  things,  he  stated  that  the  crown 
was  the  party  to  see  that  the  property  of  any  person  dying  within  its 
dominions  gets  into  proper  hands.  My  conclusion,  therefore,  is  that 
the  petitioner  may  have  letters  on  giving  the  usual  security,  but  that 
this  is  done  pursuant  to  our  local  law,  and  because  the  public  adminis- 
trator has  refused  to  act. 

Letters  granted. 

LONDON  PACKET,  THE,  (1815,  U.  S.) 
1  Mas.  14;  Fed.  Cases  8,474. 
Story,  Circuit  Court. 

(Extract)  There  had  been  a  claim.  A  consul  was  authorized  to 
claim  in  behalf  of  subjects  of  his  country.  It  was  admitted  in  other 
countries,  and  he  should  be  sorry,  if  a  different  rule  were  to  prevail 
here. 

LONG  V.  POWELL,  et  al.,  (1904,  U.  S.) 

120  Ga.  621;  48  S.  E.  185. 

Fish,  Supreme  Court  of  Georgia. 

'  *  (Syllabus)  A  consul  of  the  United  States  is  authorized  to  take  at  his 
consulate  an  acknowledgment  of  a  deed  to  realty  situated  in  this  state,  and  his 
certificate,  under  official  seal,  is  evidence  of  such  acknowledgment. 

LORING  V.  THORNDIKE,  (1862,  U.  S.— Germany) 

5  Allen  257. 

Merrick,  Supreme  Judicial  Court  of  Massachusetts. 

(263)  (Extract)  In  reference  to  this  question,  it  appears  from  the 
uncontested  (264)  evidence  in  the  case  that  on  the  4th  of  August 
1851  Mr.  Thorndike,  who  was  a  citizen  of  Massachusetts,  and  Kath- 
arina  Bayerl  of  Mayence,  in  the  grand  duchy  of  Hesse-Darmstadt, 
were  temporarily  residing  at  the  free  city  of  Frankford,  neither  of 
them  then  having  or  ever  having  had  any  domicile  there,  and  were 

247 


CONSULAR  CASES 

desirous  of  being  lawfully  married;  that,  being  foreigners  and  un- 
acquainted with  the  local  law,  they  applied  for  information  "to  magis- 
trates, counsel  and  other  persons  skilful  in  the  law,"  and  were  advised 
that  "the  proper  mode  of  entering  into  the  marriage  relation  was  the 
solemnization  of  it  before  the  consul  of  the  United  States  at  Frankfort 
on  the  Main;"  that  Mr.  Schwendler,  the  consul,  gave  them  the  same 
advice;  that  they  thereupon  appeared  before  him  for  the  purpose  of 
being  married,  and  there  signed  their  marriage  agreement,  which 
was  attested  in  the  presence  of  two  subscribing  witnesses,  and  was 
then  duly  entered  in  the  consular  register;  and  duplicate  copies  of  it 
were  delivered  at  their  request  to  each  of  the  parties.*  The  consul 
then  declared  that  their  marriage  was  legal  and  valid.  And  in  addi- 
tion to  this  he  informed  them  that  he  had  married  many  American 
gentlemen  to  American  or  German  ladies;  and  that  these  marriages, 
solemnized  and  registered  by  the  consul,  as  was  (265)  done  in  this 
case,  had  always  been  regarded  by  the  Frankfort  and  German  author- 
ities as  valid.  In  the  full  belief  that  they  were  thus  lawfully  mar- 
ried, they  thenceforward  lived  together  as  husband  and  wife,  during 
the  life  of  Mr.  Thorndike. 

Here  then  there  was  in  fact  a  contract  of  marriage  between  the 
parties,  and  a  celebration  of  their  nuptials  by  the  observation  of  a 
form  and  ceremony  which  they  were  advised  and  believed  made  their 
marriage  binding,  obligatory  and  complete.  But  its  validity  is  now  de- 
nied, upon  the  ground  that  the  civil  validity  of  a  marriage  contracted, 
entered  into  or  celebrated  at  the  free  city  of  Frankfort,  depends  wholly 
upon  the  civil  act  upon  that  subject  there  enacted.    And  these  parties, 

•The  following  is  a  copy  of  this  agreement:  "We,  the  undersigned,  Andrew 
Thorndike,  of  the  city  of  Boston,  county  of  Suffolk,  and  state  of  Massachusetts, 
aged  sixty  years,  and  Katharina  Bayerl,  of  the  city  of  Mayence,  in  the  grand 
duchy  of  Hesse,  aged  twenty-six  years,  do  hereby  declare,  that  we  have  truly  and 
solemnly  promised  to  marry  each  other,  and  that  we  now  both  wish  to  enter  into 
the  state  of  marriage;  and  that  we  desire,  in  conformity  with  the  laws  of  the 
United  States  of  America,  that  the  civil  act  of  our  union  in  marriage  may  be 
executed  in  the  usual  form  before  Ernest  Schwendler,  Esq.,  the  duly  appointed 
consul  of  the  United  States  of  America  for  this  free  city.  We  therefore  confirm 
by  these  presents  our  mutual  consent  to  the  desired  conjugal  union,  and  do  sin- 
cerely and  solemnly  promise  scrupuously  to  fulfil  the  duties  of  husband  and  wife, 
by  virtue  of  our  respective  seals  and  signatures. 

"Frankfort  on  the  Main,  Aug.  4,  1851. 
(Seal)  Andrew    Thorndike. 

(Seal)  Katharina    Bayerl." 

"Sealed  and  signed  in  presence  of 
G.  Ijindheimer, 
E.  Eckhardt, 

As  witness." 

248 


CONSULAR  CASES 

not  having  conformed  to  the  provisions  and  requirements  of  that  act, 
it  is  contended  that  they  were  never  lawfully  married. 

The  difficulty  in  determining  this  question  arises  from  the  con- 
flict of  evidence  in  relation  to  the  question,  what  was  the  local  law 
of  the  place  where  they  were  married  ?  We  have  a  copy  of  the  civil 
act  of  the  free  city  of  Frankfort  annexed  to  the  depositions  of  the  wit- 
nesses who  have  been  examined  upon  the  subject,  all  of  whom  are 
counsellors  at  law  and  residents  of  that  city.  Dr.  Yon  Guaita  and 
Dr.  Hoffman,  witnesses  on  one  side,  testify  that  the  civil  act,  which 
contains  the  provisions  of  law  with  regard  to  the  form  in  which  a  mar- 
riage is  to  be  entered  into  there,  applies  as  well  to  foreigners  as  to 
citizens  of  Frankfort ;  and  that  as  the  civil  validity  of  a  marriage  de- 
pends solely  on  the  execution  of  that  act  or  the  due  observance  of  its 
provisions,  the  ceremony  and  proceedings  which  took  place  before  the 
American  consul,  as  before  stated,  did  not  constitute  a  valid  marriage. 
But  on  the  contrary  Dr.  Braunfels  and  Dr.  Voigt  testify  with  equal 
confidence  that  the  civil  act  of  Frankfort  is  inapplicable  to  foreign- 
ers; that  marriages  between  such  persons  which  are  entered  into  at 
that  place  according  to  the  prescriptions  of  the  common  law  are  valid 
and  obligatory;  and  that,  under  the  circumstances  before  stated,  the 
marriage  between  Mr.  Thorndike  and  Katharina  Bayerl,  which  took 
place  in  the  presence  and  with  the  sanction  of  the  consul  of  the  United 
States,  was  legal  and  valid. 

(266)  In  this  positive  and  irreconcilable  conflict  of  testimony, 
we  are  under  the  necessity  of  considering  the  reasons  assigned  by  the 
witnesses  for  the  opinions  they  express,  and  of  comparing  their  opin- 
ions with  the  language  and  terms  in  which  the  civil  act  is  expressed. 

It  is  noticeable,  in  the  first  place,  that  Drs.  Von  Guaita  and 
Hoffman  deduce  their  conclusions  entirely  from  the  particular  pro- 
vision in  the  statute  of  Frankfort,  denominated  the  civil  act,  which, 
after  prescribing  the  course  of  proceedings  to  be  had  to  constitute  a 
marriage  there,  declares  that  the  validity  of  the  marriage  shall  depend 
upon  the  execution  of  that  act.  But  they  fail  to  point  out  or  indicate 
any  part  of  that  act  which,  either  in  direct  terms  or  by  necessary  or 
reasonable  implication,  makes  it  applicable  to  foreigners  temporarily 
resident  there,  who  seek  to  contract  a  marriage  and  to  be  lawfully 
married  at  Frankfort ;  nor  do  they  refer  to  any  judicial  interpretation 
of  its  provisions  to  that  effect,  or  to  any  legal  authority  in  support  of 
their  opinion.  But  Drs.  Braunfels  and  Yoigt  testify  that  they  have 
known  many  cases,  to  some  of  which  they  particularly  refer,  in  which 
it  has  been  determined  by  German  tribunals  that  the  said  civil  act 
does  not  apply  to  or  embrace  the  cases  of  foreigners  entering  into  that 
relation  in  that  city.    And  that  this  is  a  reasonable  and  proper  con- 

249 


CONSULAR  CASES 

elusion  would  seem  fairly,  perhaps  it  might  be  said  necessarily,  to  re- 
sult from  several  provisions  of  that  act.  It  is  upon  this  question  very 
significant  that  the  civil  act  makes  very  precise  and  exact  provisions 
as  to  the  manner  in  which  citizens  of  Frankfort  may  conclude  a  valid 
marriage  abroad,  while  it  does  not  in  any  word  or  phrase  allude  to 
the  way  or  manner  in  which  foreigners  may  conclude  a  lawful  mar- 
riage there.  But  a  more  important  and  what  perhaps  ought  to  be  re- 
garded as  a  decisive  consideration,  results  from  the  provisions  concern- 
ing the  publication  of  banns.  These  are  most  expressly  required  to 
be  published  in  each  of  the  places  where  the  parties  proposing  and  in- 
tending to  be  married  are  respectively  domiciliated ;  in  the  city  in  one, 
in  the  rural  districts  in  another  prescribed  form  and  manner.  And 
this  prior  publication  of  banns  is  made  one  of  the  prerequisites  es- 
sential to  the  validity  (267)  of  the  marriage.  Such  a  provision,  it 
would  seem  obvious,  could  not  have  been  intended  to  have  any  refer- 
ence to  foreigners  who  had  not  in  some  manner  acquired  a  domicile 
there,  because  it  ordains  the  observance  of  a  regulation  with  which 
it  would  be  impossible  for  such  persons  to  comply,  and  to  which  it 
would  therefore  be  absurd  to  require  them  to  conform.  This  provision, 
therefore,  under  an  interpretation  which  appears  to  be  just  and  rea- 
sonable, has  a  very  direct  and  strong  tendency  to  show  that  the  civil 
act  is  only  applicable  to  and  obligatory  upon  citizens,  and  per.sons 
who  by  choice,  or  long  extended  residence  have  obtained  a  domicile 
in  the  .state  where  the  law  is  enacted. 

In  support  of  this  conclusion,  and  as  tending  also  to  prove  the 
validity  of  the  marriage  of  Mr.  Thorndike  and  Miss  Bayerl,  Dr. 
Braunfels  testifies  that  the  American  consul  "has  always  and  at  any 
time  been  in  the  habit  of  solemnizing  such  marriages;"  that  he  mar- 
ried a  great  number  of  couples  where  each  of  the  parties,  or  the  hus- 
band was  a  citizen  of  the  Ignited  States;  that  this  has  been  done 
openly,  with  the  full  knowledge  of  the  Frankfort  authorities,  who 
have  never  in  any  manner  objected  or  interfered  to  prevent  it ;  and  he 
adds:  "I  have  known  of  some  cases,  (for  instance,  the  case  of  Mr. 
Pfeil.)  where  Frankfort  ladies,  intending  to  marry  American  gentle- 
men, have  been  released  by  the  senate  from  their  citizenship  expressly 
'that  the}'  might  enter  into  civil  marriage  before  their  consul.'  " 
Certainly  such  a  proceeding  must  be  regarded  as  a  very  clear  and  au- 
thorative  declaration  that  the  provisions  of  the  civil  act  of  marriage 
are  not  applicable  to  or  obligatory  upon  foreigners,  and  that  a  mar- 
riage of  such  persons  before  the  consul  of  their  country,  according  to 
the  prescription  of  the  common  law,  would  be  recognized  as  legal  and 
valid  at  Frankfort.  And  this  conclusion  seems  to  be  fully  warranted 
by  the  decisions  in  the  cases  referred  to  by  the  witnesses,  in  which  the 

250 


CONSULAR  CASES 

marriage  of  foreigners  by  Protestant  curates  at  Frankfort,  without 
conforming  to  the  requirements  of  the  law  of  the  19th  November  1850 
— the  civil  act  before  referred  to — has  been  acknowledged  and  upheld 
as  valid  by  German  judicial  tribunals. 

The  testimony  of  Drs.  Braunfels  and  Voigt,  that  the  marriage 
(268)  of  Mr.  Thorndike  and  Miss  Bayerl  by  and  before  Mr.  Schwend- 
ler,  the  consul  of  the  United  States,  in  the  form  and  manner  in  which  it 
was  there  contracted  and  entered  into  by  the  parties,  is  valid  in 
Frankfort,  as  having  been  duly  contracted  according  to  the  prescrip- 
tions of  that  portion  of  the  common  law  which  had  not  been  there  ab- 
rogated or  repealed,  is  very  strongly  corroborated  by  the  decisions  to 
which  they  refer ;  and  especially  by  the  proceedings  of  the  public  au- 
thorities in  releasing  females  from  their  citizenship  in  order  that  they 
might,  and  to  enable  them  to,  enter  into  a  valid  marriage  there  before 
the  consul  of  the  country  of  their  intended  husbands.  And  when  it  is 
considered  that  foreign  consuls,  and  this  consul  in  particular,  did  fre- 
quently and  notoriously,  for  and  in  behalf  of  parties  similarly  sit- 
uated, officially  perform,  and  allow  and  permit  to  be  performed  in 
his  presence,  a  form  and  ceremony  with  an  intent  and  design  thereby 
to  marry  the  parties,  and  to  make  their  marriage  complete  and  legal ; 
and  that  when  Mr,  Thorndike  was  carefully  inquiring  of  proper  and 
competent  persons  to  obtain  accurate  information  on  the  subject,  he 
found  it  to  be  the  concurrent  opinion  and  advice  of  the  consul,  and  of 
"magistrates,  counsel  and  persons  skilful  in  the  law,"  that  the  proper 
mode  and  form  of  marriage  by  him  as  a  foreigner  was  the  solemniza- 
tion of  it  before  the  consul  of  his  country,  and  that  such  proceeding 
would  make  the  marriage  legal,  we  think  that  there  is  a  clear  pre- 
ponderance of  evidence  that  the  statements  of  Drs.  Braimfels  and 
"Voigt  are  to  be  relied  upon,  and  consequently  that  the  lawfulness 
and  validity  of  the  marriage  of  Mr.  Thorndike  and  Miss  Bayerl  are 
satisfactorily  proved  and  established.  The  circumstances  which  hava 
been  shown,  and  as  to  which  there  is  no  dispute  and  can  be  no  doubt, 
concerning  the  cohabitation  of  these  parties  as  husband  and  wife, 
their  constant  and  mutual  recognition  of  the  subsistence  of  that  rela- 
tion, and  their  care  and  nurture  of  children  as  their  common  offspring, 
would  be  quite  sufficient,  under  the  provisions  of  our  own  statute,  in 
the  absence  of  evidence  as  to  the  particular  form  and  manner  in 
which  it  was  contracted  or  solemnized,  to  prove  a  valid  and  legal 
marriage.  Gen.  Sts.  c.  106,  §  22.  And  it  would  certainly  be  im- 
reasonable  and  unjust  to  (269)  withhold  from  our  o^ti  citizens  mar- 
ried in  foreign  countries  the  benefit  of  the  presumptions  resulting 
from  the  provisions  of  our  own  statutes.  But  it  is  vmnecessary  to  urge 
or  to  rely  upon  this  consideration,  since  upon  the  whole  evidence  be- 

251 


CONSULAR  CASES 

fore  us  there  appears  to  be  a  clear  preponderance  of  proof  that  Mr. 
and  Mrs.  Thomdike  were  lawfully  married  at  Frankfort,  and  that 
their  marriage  would,  in  vnew  of  the  proceedings  and  ceremonies  at- 
tending it,  be  there  recognized  as  valid  by  the  public  authorities  and 
judicial  tribunals.  This  being  so,  their  marriage  is,  upon  the  well  es- 
tablished principles  of  the  common  and  international  law,  to  be  re- 
garded and  treated  as  valid  and  obligatory  in  the  countries  where  the 
parties  respectively  had  their  domicile.    Bishop  on  Mar.  &  Div.  §  125. 

LORWAY  v.  LOTJSADA,  (1866,  U.  S.) 

Fed.  Cages  8,517. 
Lowell,  District  Court. 

(Extract)  But,  after  he  has  done  an  act  professedly  official,  I 
see  no  reason  why  an  individual  may  not  try  the  question  here,  whether 
the  act  was  within  the  scope  of  his  authority. 

[In  this  case  the  jury  instructed  by  the  court  gave  the  plaintiff 
damages  against  the  consul  for  half  the  fees  charged. 

This  decision  is  hard  to  defend  and  is  in  conflict  with  others. 
Such  a  system  might  make  it  impossible  for  a  foreign  consul  to  col- 
lect fees  and  would  vary  the  fees  according  to  the  jurisprudence  of 
the  country  in  which  the  consul  was  established. — Ed.] 

LUSCOM  V.  OSGOOD,  (1844,  U.  S.) 

1  Sprague  82;  Fed.  Cases  8,608;  5  Moore  145. 

Sprague,  District  Court. 

[It  would  be  the  duty  of  consul  to  return  minor  sailor  to  his  pa- 
rents.— Ed.] 

LYNCH  v.  CaOWDER,  (1849,  U.  S.— Great  Britain) 

]2  Law  Rep.  355;  Fed.  Cases  8,637. 

Belts,  District  Court. 

[On  protest  of  British  consul  refused  to  take  jurisdiction  and  com- 
pelled master  to  pay  summary  costs. — Ed.] 

McCANDLESS  v.  YORKSHIRE,  (1897,  U.  S.) 

28  S.  E.  663;   101  Ga.  180. 

Cohh,  Supreme  Court  of  Georgia. 

(664)  1.  The  deed  which  was  filed  and  recorded  for  the  purpose 
of  making  the  levy  in  this  case  began  with  the  words,  "State  of  New 

252 


CONSULAR  CASES 

York,  County  of  New  York,"  and  recited  that  it  was  the  deed  of  "the 
Yorkshire  Guarantee  and  Securities  Corporation,  Limited,  by  its  pres- 
ident (naming  him)  and  directors  (naming  two  persons  of  the  state 
and  county  aforesaid)."  It  was  signed  by  the  president  and  direc- 
tors, and  attested  as  follows:  "W.  A.  Angells,  Cleveland,  Road- 
head,  Department  Accountant.  Frank  C.  McGee,  Consul  of  the  U. 
3.  of  America  at  Huddersfield,  Eng. "  There  was  no  evidence  as  to 
where  the  deed  was  actually  executed.  From  the  caption  and  the  re- 
citals in  the  paper  it  must  be  presumed,  in  the  absence  of  evidence 
showing  the  place  of  its  actual  execution,  that  the  paper  was  signed 
and  attested  in  the  state  and  county  of  New  York.  Allgood  v.  State, 
87  Ga.  668,  13  S.  E.  569. 

2.  If  the  paper  was  actually  signed  in  the  state  of  New  York, 
the  question  is  raised :  Was  it  so  attested  as  to  be  admitted  to  record 
under  the  laws  of  the  state?  "To  authorize  the  record  of  a  deed  to 
realty  or  personalty,  when  executed  out  of  this  state,  the  deed  must 
be  attested  by,  or  acknowledged  before,  *  *  *  a  consul  or  vice- 
consul  of  the  United  States,  the  certificate  of  these  officers  under  their 
seal  being  evidence  of  the  fact."  Civ.  Code,  §  3621.  "Every  secre- 
tary of  legation  and  consular  officer  is  authorized,  whenever  he  is  re- 
quired or  deems  it  necessary  or  proper  so  to  do,  at  the  post,  port,  place, 
or  within  the  limits  of  his  legation,  consulate,  or  commercial  agency, 
*  *  *  to  perform  any  notarial  act  which  any  notary  public  is 
required  or  authorized  by  law  to  do  within  the  United  States. ' '  Rev, 
St.  U.  S.  (2d.  Ed.,  1878)  §  1750.  Construing  the  section  of  the  civil 
code  which  authorizes  a  consul  to  attest  a  deed  in  connection  with  the 
section  of  the  revised  statutes  which  defines  the  powers  of  a  consul, 
it  is  clear  that  it  was  not  intended  that  a  consul  could  act,  in  relation 
to  the  the  matter  of  attesting  deeds,  at  any  other  place  than  that  at 
which  the  laws  of  the  United  States  authorize  him  to  perform  such 
acts.  Therefore,  if  a  consul  of  the  United  States  attest  a  deed  at  any 
other  place  than  his  consulate,  such  attestation  would  not  be  sufficient 
to  authorize  the  record  of  the  deed. 

M'DONOUGH  V.  DANNERY,  (1796,  U.  S.— France  and  Great  Britain) 
3  Dall.  188. 

Supreme  Court. 

[Salvage  and  residue  of  British  ship  captured  by  French  and 
abandoned.  British  and  French  consuls  claim  the  residue — and  each 
in  turn  appeals — supreme  court  finally  decides  in  favor  of  French 
consul's  claim. — Ed.] 

253 


CONSULAR  CASES 
McKAY  V.  GARCIA,  (1873,  U.  S.) 

6  Ben.  556;   Fed.  Cases  8,844. 
Blatchford,  District  Court. 

Suit  Against  Consul. — ^Practice. — Arrest. — Applicability  of  the  New  York  Code. — 
Pendency  of  Another  Suit  for  the  Same  Cause  of  Action. 

(556)  BLATCHFORD,  J.  This  is  an  action  for  a  debt.  By 
the  act  of  February  28th,  1839  (5  U.  S.  Stat,  at  Large,  321),  in  con- 
nection with  the  act  of  January  14th,  1841  (Id.  410),  imprisonment 
for  debt  is  allowed,  on  process  issuing  out  of  a  court  of  the  United 
States  where,  by  the  laws  of  the  state,  imprisonment  for  debt  shall 
be  allowed,  the  conditions  and  restrictions  prescribed  by  the  state  be- 
ing applicable  to  the  process  issuing  out  of  the  court  of  the  United 
States.  The  act  of  1839  provides  that  "the  same  proceedings  shall  be 
had"  in  the  court  of  the  United  States  "as  are  adopted  in  the  courts 
of  such  state." 

The  179th  section  of  the  code  of  procedure  of  New  (557)  York  pro- 
vides for  the  arrest  and  imprisonment  of  a  defendant  in  an  action  for 
money  received  in  a  fiduciary  capacity.     This  is  such  an  action. 

This  being  an  action  at  law,  the  practice  in  it  must,  under  the 
5th  section  of  the  act  of  June  1st,  1872  (17  U.  S.  Stat,  at  Large, 
197),  conform,  as  near  as  may  be,  to  the  practice  now  existing  in  a 
like  cause  in  the  courts  of  record  of  the  state  of  New  York. 

The  defendant  having  moved,  on  affidavits  on  his  part,  to  sub- 
stantially vacate  the  order  to  hold  to  bail,  the  plaintiff  has  a  right, 
under  the  provisions  of  section  205  of  the  code  of  procedure  of  New 
York,  to  oppose  such  motion  on  new  and  futher  affidavits  and  proofs, 
in  addition  to  those  on  which  the  order  to  hold  to  bail  was  made. 

The  pendency  of  a  former  suit  against  the  defendant  in  a  state 
court  for  the  same  cause  of  action,  is  of  no  importance,  for  such  state 
court  was  and  is  without  jurisdiction  of  the  suit,  as  the  defendant 
was  and  is  a  foreign  consul.  But  if  he  were  not,  the  weight  of 
authority  is  that  the  fact  of  the  pendency  of  such  suit  in  the  state 
court  would  be  of  no  effect  on  this  suit  (Loring  v.  Marsh,  2  Clifford, 
311,  322). 

The  cause  of  action  here  is  one  which  was  assignable. 

On  all  the  affidavits  and  papers  on  both  sides,  I  am  of  opinion  that 
the  order  to  hold  to  bail  would  have  been  properly  grantable  in  the 
first  instance.     If  so,  it  must  be  upheld. 

The  motion  to  vacate  the  order  to  hold  to  bail  and  to  discharge 
the  defendant  from  bail  to  the  marshal  on  his  filing  common  bail,  is 
denied. 

254 


CONSULAR  CASES 

MADONNA  D'IDRA,  (1811,  Great  Britain— U.  S.) 

1  Dod.  41. 

Sir  William  Scott,  High  Court  of  Admiralty. 

(Extract)  But  the  court  is  not  left  solely  to  its  own  conjectures, 
as  to  what  may  be  the  established  usage  with  respect  to  the  subsis- 
tance  of  the  dismissal  of  mariners  employed  in  the  navigation  of 
Greek  vessels.  It  is  sworn  by  a  person,  who  states  himself  to  have 
been  for  twenty  years  captain  of  an  Ottoman  vessel  and  at  present 
the  consul-general  of  the  sublime  porte  resident  in  Great  Britain,  that 


MAGEE,  IN  KE,  (1885,  Great  Britain) 
L.  E.  15  Q.  B.  D.  332;  54  L.  J.,  Q.  B.  394. 

Cave,  Queen 's  Bench. 

(Syllabus)  When  an  affidavit  or  proof  in  bankruptcy  is  sworn  abroad  before 
a  British  consul,  or  vice-consul,  a  notarial  certificate  in  verification  of  the  signa- 
ture and  qualification  of  the  consul,  or  vice-consul,  is  not  required. 

MAGEE  V.  THE  MOSS,  (1831,  U.  S.) 

Gilp.  219;  Fed.  Cases  8,944. 
Hopkinson,  District  Court. 

(Extract)  I  have  declared  that  I  will  not  countenance  the  prac- 
tice of  thrusting  our  seamen  into  foreign  gaols  by  the  captain,  through 
influence  he  may  have  with  our  consuls  or  the  officers  in  a  foreign 
port. 

MAHIN  V.  UNITED  STATES,  (1905,  U.  S.) 

41  Ct.  CI.  1. 

Booth,  Court  of  Claims. 

(Syllabus)  A  consular  agent  has  no  direct  connection  in  the  matter  of  ac- 
counting with  the  department  of  state.  He  is  under  the  control  and  supervision  of 
the  consul,  and  to  him  only  does  he  report. 

MAHONEY  V.  UNITED  STATES,  (1869,  U.  S.— Algiers) 

10  Wall.  62. 

■Field,  Supreme  Court. 

[When  Algiers  came  under  the  French  control  the  salary  of  the 
American  consul  was  abolished. — Ed.] 

MALI  V.  KEEPER  OF  THE  COMMON  JAIL,  See  Wildenhus's  case. 

255 


CONSULAR  CASES 
MANNHARDT  v.  SODERSTROM,  (1806,  U.  S.) 

1   Binn.    13S. 

Tilghman,  Supreme  Court  of  Pennsylvania. 

(142)    TILGHMAN,  C.  J.  now  delivered  the  opinion  of  the  court. 

This  is  an  action  on  the  case  on  a  bill  of  exchange  drawn  by 
the  defendant,  who  appeared  and  pleaded  the  general  issue ;  at  the 
same  time  entering  a  protest  against  the  court's  jurisdiction,  verified 
by  his  oath,  in  which  he  averred  that  at  the  time  of  issuing  the  writ 
in  this  clause  he  was,  and  still  is  consul  general  of  his  majesty  the 
king  of  Sweden,  in  the  United  States  of  America.  The  defendant's 
counsel  have  now  brought  the  point  of  jurisdiction  before  the  court, 
by  a  motion  to  quash  the  writ ;  and  it  is  confessed  by  the  counsel  for 
the  plaintiff  that  the  defendant's  allegation,  that  he  is  consul  general 
of  the  king  of  Sweden,  is  true. 

Before  I  proceed  to  deliver  the  opinion  of  the  court  on  the  main 
question,  it  will  be  necessary  to  take  notice  of  one  or  two  objections  of 
the  plaintiff's  counsel  which  relate  to  other  points. 

They  have  placed  some  reliance  on  the  circumstance  of  the  de- 
fendant's having  submitted  to  suits,  judgments,  and  executions,  in 
many  instances ;  which  they  have  proved  by  the  records  of  this  court, 
and  the  Common  Pleas.  In  answer  to  this  objection,  it  need  only  be 
obser\'ed,  that  in  those  cases  it  did  not  appear  on  the  record  that  the 
defendant  was  a  consul,  and  therefore  the  court  could  take  no  notice 
of  it. 

They  have  also  urged  that  the  defendant  is  too  late  in  excepting 
to  the  court's  jurisdiction  after  pleading  the  general  issue;  and  cases 
have  been  cited  on  this  head  from  the  English  books  of  practice.  In 
answer  to  this  objection  it  is  sufficient  to  say,  that  by  the  established 
practice  both  in  the  courts  of  this  state  and  of  the  United  States, 
the  court  will  put  a  stop  to  the  proceedings  in  any  stage  on  its  being 
shown  that  they  have  no  jurisdiction.  In  the  cases  of  Duneanson  v. 
Maclure  in  this  court,  and  of  Snell  v.  Fausatt  in  the  circuit  court  of 
the  United  States  before  Judge  Washington,  a  defect  of  jurisdiction 
appearing,  in  the  opinion  of  the  defendant's  counsel,  on  the  evidence 
given  on  the  trial  of  the  general  issue,  the  point  of  jurisdiction  was 
urged,  and  neither  the  counsel  for  the  plaintiff,  nor  the  court,  suggest- 
ed that  there  was  any  impropriety  in  going  into  the  argument.  These 
previous  points  being  disposed  of.  I  will  consider  the  merits  of  the  de- 
fendant's motion,  which  will  depend  upon  the  constitution  of  the 
United  States,  and  the  "act  to  establish  the  (143)  judicial  courts  of 
the  United  States,"  passed  24th  September,  1789,  and  commonly  called 
the  judiciar}'  act.     By  the  2d  section  of  the  3d  article  of  the  conatitu- 

256 


CONSULAR  CASES 

tion,  it  is  declared  that  "the  judicial  power  shall  extend  to  all  cases 
in  law  and  equity  arising  under  this  constitution,  the  laws  of  the 
United  States,  and  treaties  made  or  which  shall  be  made  under  their 
authority;  to  all  cases  affecting  ambassadors,  other  public  ministers, 
and  consuls,  to  all  cases  of  admiralty  and  maritime  jurisdiction,  to  con- 
troversies to  which  the  United  States  shall  be  party,  to  controversies 
between  two  or  more  states,  between  a  state  and  citizens  of  another 
state,  between  citizens  of  different  states,  between  citizens  of  the  same 
state  claiming  lands  under  grants  of  different  states,  and  between  a 
state  or  the  citizens  thereof  and  foreign  states,  citizens  or  subjects," 

"In  all  cases  affecting  ambassadors,  other  public  ministers,  and  consuls,  and 
those  in  which  a  state  shall  be  party,  the  supreme  court  shall  have  original  jur- 
isdiction; in  all  the  other  cases  before  mentioned,  the  supreme  court  shall  have  ap- 
pellate jurisdiction  both  as  to  law  and  fact,  with  such  exceptions  and  under 
such  regulations  as  the  congress  shall  make, ' ' 

It  is  now  sixteen  years  since  the  courts  of  the  United  States 
have  been  organized  ,  and  during  that  time  the  construction  of  the 
article  relating  to  the  judicial  power,  has  been  frequently  considered. 
Many  principles  have  been  established,  by  which  we  are  bound.  In 
conformity  to  those  principles  we  are  to  imderstand,  that  by  the  ex- 
pressions "the  judicial  power  shall  extend"  to  the  cases  enumerated 
in  the  section  above  mentioned,  congress  became  invested  with  the 
right  of  assuming  the  exclusive  jurisdiction  for  their  courts;  but  in 
those  of  the  said  enumerated  cases,  where  the  state  courts  had  juris- 
diction prior  to  the  adoption  of  the  constitution,  and  where  the  acts 
of  congress  have  not  vested  an  exclusive  jurisdiction  in  their  own 
courts,  the  courts  of  the  several  states  retain  a  concurrent  jurisdiction. 
Thus  in  cases  of  "admiralty  and  maritime  jurisdiction,"  the  courts 
of  the  United  States  have  always  exercised  an  exclusive  jurisdiction, 
and  in  disputes  between  "citizens  of  different  states"  they  have  ex- 
ercised a  jurisdiction  concurrently  with  the  state  courts.  And  yet 
in  both  cases  the  judicial  power  of  the  courts  of  the  United  States 
is  founded  on  the  same  expression  in  the  constitution,  that  is  to  say, 
that  the  judicial  power  of  the  (144)  United  States  shall  extend  etc,  to 
those  two  cases  among  others  that  are  enumerated  in  the  same  para- 
graph. 

It  being  then  established  that  congress  had  a  right  to  assume 
an  exclusive  jurisdiction  "in  all  cases  affecting  consuls,"  let  us  see 
what  provision  they  have  made  upon  that  subject  by  their  laws. 

The  9th  section  of  the  judiciary  act  ascertains  the  jurisdiction 
of  the  district  courts  of  the  United  States,     (a) 

In  the  first  parts  of  this  section,  jurisdiction  is  given  to  the 

(o)  1  U.  S.  Laws  53,  54. 

257 


CONSULAR  CASES 

district  courts  in  various  matters  both  of  a  criminal  and  a  civil  nature, 
in  some  of  which  their  jurisdiction  is  exclusive  of  the  state  courts, 
and  in  others  concurrent  with  them.  Towards  the  latter  part  of  the 
section  the  district  courts  are  vested  with  jurisdiction  "exclusively 
of  the  courts  of  the  several  states,  of  all  suits  against  consuls  or  vice 
consuls  except  for  offences  above  the  description  aforesaid."  The 
word  suits  includes  those  both  of  a  civil  and  criminal  nature ;  and  the 
exception  of  "offenses  above  the  description  aforesaid"  refers  to  a  de- 
scription in  the  first  part  of  this  section,  viz.  offences  where  no  other 
pimishment  than  whipping  not  exceeding  thirty  stripes,  a  fine  not 
exceeding  100  dollars,  or  a  term  of  imprisonment  not  exceeding  six 
months,  is  to  be  inflicted. 

It  is  to  be  remarked  that  the  jurisdiction  of  the  district  courts 
in  suits  against  consuls  or  vice  consuls  is  exclusive  of  the  state  courts, 
but  not  exclusive  of  the  courts  of  the  United  States;  because  the  sec- 
ond section  of  the  third  article  of  the  constitution  had  provided  that 
"in  all  cases  affecting  ambassadors,  other  public  ministers,  and  con- 
suls, the  supreme  court  shall  have  original  jurisdiction."  Accord- 
ingly it  is  enacted  by  the  thirteenth  section  of  the  judiciary  act,  that 
the  supreme  court  of  the  United  States  shall  have  "original  but  not 
exclusive  jurisdiction  of  all  suits  in  which  a  consul  or  vice  consul 
shall  be  a  party. ' ' 

Then  the  ninth  and  thirteenth  sections  of  the  judiciary  act  are 
consistent  with  each  other  and  with  the  constitution;  and  in  suits 
against  consuls  and  vice  consuls  the  jurisdiction  of  the  state  courts  is 
excluded.  Nor  are  we  to  wonder  at  this  provision.  One  considerable 
object  of  our  federal  constitution  was  to  vest  in  the  United  States 
the  administration  of  those  affairs  (145)  by  which  we  are  related  to 
foreign  nations.  Consuls,  although  not  entitled  to  the  privilege  of 
ministers,  often  exercise  very  important  functions ;  and  it  is  remark- 
able that  in  the  constitution  they  are  mentioned  in  conjunction  with 
"ambassadors  and  other  public  ministers;"  and  like  them  they  enjoy 
the  important  privilege  of  commencing  suits  in  the  supreme  court 
of  the  United  States.  It  was  wise  therefore  to  protect  them  from 
suits  in  the  state  courts,  although  they  are  left  at  liberty  to  bring 
action  against  other  persons  in  those  courts,  if  they  find  it  convenient 
and  choose  to  do  so. 

Upon  the  whole  the  court  are  of  opinion,  that,  it  appearing  on 
the  record  that  this  suit  is  against  the  consul  general  of  the  king  of 
S-weden,  their  jurisdiction  is  taken  away  by  the  ninth  section  of  the 
judiciary  act,  and  consequently  the  proceedings  against  the  defendant 
must  be  quashed. 

Proceedings  quashed. 

258 


CONSULAR  CASES 

MARIE,  THE,  (1892,  U.  S.— Norway) 
49  Fed.  Eep.  286. 
Deady,  District  Court. 

[American  who  is  a  member  of  the  crew  of  a  Norwegian  ship  is 
subject  to  the  jurisdiction  of  the  Norwegian  and  Swedish  consul  in 
accordance  with  the  13th  article  of  the  treaty  of  July  4,  1827. — Ed.] 

MARINE  WHARF  v.  PARSONS,  (1897,  U.  S.) 

26  S.  E.  956. 

Jones,  Supreme  Court  of  South  Carolina. 

Appeal  from  common  pleas  circuit  court  of  Charleston  county; 
W.  C.  Benet,  judge. 

Action  by  the  Marine  Wharf  &  Storage  Company  against  Charles 
Parsons,  Jr.  There  was  a  decree  on  demurrer  sustained  to  the  answer, 
and  defendant  appeals.     Affirmed. 

The  decree  of  Mr.  Justice  Benet,  and  the  grounds  of  appeal 
therefrom,  are  as  follows : 

"Although  this  cause  was  heard  before  me  upon  a  demurrer  to 
the  answer  during  the  April  term  of  the  court  of  common  pleas  for 
Charleston  county,  quite  a  number  of  records  in  several  old  cases  were 
referred  to  in  the  complaint  and  answer  and  demurrer  as  if  attached, 
and  made  a  part  thereof,  and  therefore  the  facts  before  the  court  were 
really  quite  voluminous.  This  feature  of  the  case,  which  necessarily 
compels  a  somewhat  long  statement  of  facts,  together  with  the  number 
of  legal  questions  raised  and  discussed  under  the  demurrer,  renders 
any  other  explanation  of  the  length  of  this  decree  unnecessary,  for 
the  simple  reason  that  no  proper  understanding,  either  of  the  facts 
or  the  law  involved,  would  be  practicable  without  quite  a  long  refer- 
ence to  and  discussion  of  the  same. 

**0n  July  17,  1895,  the  defendant  made  a  bond  and  mortgage 
to  the  plaintiff  for  a  portion  of  the  purchase  money  of  some  property 
in  Charleston,  including  lot  55,  specially  referred  to  hereafter.  From 
the  recitals  in  the  bond  it  appears  that  the  defendant  had  purchased 
and  taken  a  deed  of  conveyance  on  that  day  from  the  plaintiff  of  the 
property,  including  lot  55,  but  had  made  some  objection  to  the  title 
in  one  particular,  which  objection  was  not  admitted  as  being  a  valid 
one  by  the  seller,  the  Marine  Wharf  and  Storage  Company.  In  order 
to  complete  the  transaction,  however,  it  was  agreed  that  the  convey- 
ance should  be  made,  and  that  the  bond  should  be  so  conditioned  as  to 
protect  the  '  purchaser  for  a  reasonable  time,  and  in  a  reasonable  way, 

259 


CONSULAR  CASES 

from  damage  on  account  of  the  alleged  defect  aforesaid.'  The  con- 
dition of  the  bond  accordingly  was  that  Parsons  should  pay  the 
Marine  "Wharf  $8,000,  with  interest,  five  years  from  date,  *or  as  soon 
before  that  time  as  the  title  to  said  lot  55  shall  by  a  court  of  competent 
jurisdiction  be  held  or  made  good  so  far  as  the  alleged  defect  alone 
is  concerned.'  This  defect,  as  appears  from  the  pleadings,  is  that 
the  proof  of  service  upon  certain  minor  defendants  in  a  previous  suit 
of  Holmes  against  Zanoguera,  in  1875,  which  formed  one  of  the  old 
links  (957)  in  the  chain  of  title,  had  been  made  by  the  affidavit  of 
the  party  serving  the  minors,  which  affidavit  was  made  before  a  con- 
sular agent  of  the  Ignited  States,  in  the  island  of  Majorca,  kingdom 
of  Spain,  who  signed  and  sealed  the  affidavit  in  his  official  capacity; 
the  objection  being  that  the  affidavit  was  defective  because  not  taken 
before  a  proper  officer,  qualified  by  the  laws  of  South  Carolina  to  take 
an  affidavit.  It  will  thus  appear  that  the  intention  of  the  parties 
at  the  time  of  the  execution  of  this  bond,  in  1895,  was  to  allow  an 
opportunity  for  a  court  of  competent  jurisdiction  to  declare  the  title 
to  have  been  'good'  under  the  old  proceedings,  or  else  to  make  it  good 
by  new  proceedings.  This  intention  is  clearly  set  out  in  the  bond  and 
in  the  complaint  in  this  cause.  The  plaintiff,  the  Marine  Wharf, 
immediately,  during  the  month  of  July,  1895,  filed  a  proceeding  en- 
titled *  Marine  Wharf  and  Storage  Company  against  Catalina  Zano- 
guera et  al.,'  in  the  court  of  common  pleas  in  Charleston  county,  in 
which  it  referred  to  the  former  suit  of  Holmes  against  Zanoguera, 
and  the  alleged  irregularity  in  the  proof  of  service,  and  asked  that 
the  court  would  hold  and  declare  the  old  proceedings  and  proof  of 
service  to  have  been  regular  and  valid,  and  no  cloud  on  the  title  of 
this  plaintiff,  or  else  confirm  them.  To  this  suit  were  made  parties 
defendant  all  of  the  heirs  at  law  of  Zanoguera,  who  had  been  defend- 
ants in  the  former  proceeding  of  Holmes  against  Zanoguera,  and  the 
record  shows  that  they  were  all  duly  and  regularly  served  by  publi- 
cation and  mailing  of  the  summons  and  complaint.  No  demurrers 
or  answers  were  filed  or  served.  The  suit  came  duly  on  to  trial  and 
judgment,  and  on  September  7,  1895,  the  Hon.  0.  W.  Buchanan,  pre- 
siding judge,  signed  a  decree  in  which  he  held  that  the  former  pro- 
ceedings, including  the  proof  of  service  in  Holmes  against  Zanoguera, 
had  been  valid  and  binding ;  and  he  also  further  confirmed  and  ratified 
them,  and  vested  and  validated  in  the  Marine  Wharf  and  Storage 
Company  the  title  to  lot  55.  From  this  decree  no  appeal  was  taken, 
and  it  therefore  stands  of  force  as  a  judgment  of  this  court.  All  of 
this  will  be  found  upon  reference  to  the  proceedings.  The  Marine 
Wharf  and  Storage  Company  also  spared  no  pains  in  its  endeavor 
to  satisfy  Mr.  Parsons,  and  also  to  notify  the  Zanoguera  people  of 

260 


CONSULAR  CASES 

the  entire  matter.  Immediately,  in  July,  1895,  it  had  prepared, 
under  the  seal  and  certificate  of  clerk  of  court,  a  copy  of  the  original 
order  for  publication,  and  order  for  service,  and  original  proof  of 
service,  in  the  old  case  of  Holmes  against  Zanoguera.  These  were 
sent  to  Spain,  and  at  the  foot  of  these  papers  was  obtained  an  affi- 
davit from  all  of  the  heirs  of  Zanoguera  (then  in  the  Spanish  island 
of  Majorca)  to  the  effect  that  all  of  the  parties  had  been  served  in  the 
former  case,  and  that  such  service  had  been  made  as  stated  in  the 
previous  affidavit  of  Miguel  Sbert,  the  party  who  served  them  in 
1875.  Miguel  Sbert,  it  appeared  from  the  allegations  in  the  com- 
plaint, had  died,  and  hence  his  affidavit  could  not  be  obtained;  but 
the  affidavit  of  the  parties  themselves  was  fortunately  made  before 
Ernesto  Canut,  the  very  same  consular  agent  who  had  taken  the 
original  affidavit  of  Miguel  Sbert  in  1875.  This  affidavit  of  1895  was 
filed  7iunc  pro  time,  in  the  records  of  this  court,  in  the  old  case  of 
Holmes  v.  Zanoguera,  and  is  also  referred  to  in  these  present  proceed- 
ings, and  in  the  recent  case  of  the  Marine  Wharf  and  Storage  Com- 
pany against  Zanoguera  and  others,  brought  for  the  purpose  of  having 
the  former  proceedings  declared  valid  and  binding.  Having  done 
this,  the  plaintiff  conceived  that  the  title  had  been  both  'held  good' 
and  'made  good'  by  a  court  of  competent  jurisdiction,  and  that  the 
bond  was  due  by  its  terms.  It  therefore  filed  its  summons  and  com- 
plaint in  the  present  cause,  alleging  these  facts,  and  asked  that  it 
should  have  payment  from  Mr.  Parsons  of  his  obligation.  To  this 
complaint  the  defendant  filed  an  answer,  and  the  plaintiff  demurred 
to  the  answer.     The  hearing  came  up  on  this  demurrer. 

"As  already  stated,  in  addition  to  the  record  in  the  present  case, 
several  other  records  were  made  parts  of  the  pleadings  and  pro- 
duced before  the  court;  and,  in  order  to  emphasize  the  course  of  the 
proceedings,  it  is  only  proper  to  list  these  different  papers  which  were 
so  referred  to  and  used  in  the  argument,  and  which  really  are  a  part 
of  the  record  in  this  case.  They  are  as  follows:  (l)The  present 
foreclosure  suit  of  Marine  "Wharf  and  Storage  Company  against 
Charles  Parsons,  Jr.  (2)  The  suit  of  Marine  Wharf  and  Storage 
Company  against  Zanoguera  et  al.,  brought  in  1895,  in  order  to  have 
the  title  held  or  made  good.  (3)  The  affidavit  of  1895,  admitting  the 
fact  of  the  service  in  1875,  which  affidavit  is  filed  with  the  old  suit  of 
1875.  (4)  The  original  proceedings  of  1875  brought  by  Holmes,  ad- 
ministrator, against  Zanoguera  et  al.,  for  the  purpose  of  settling  the 
estate  of  Zanoguera.  These  latter  proceedings  will  be  more  fully 
commented  on  in  the  discussion  as  to  their  validity.  (5)  Deed  from 
Hunter,  per  Master  Miles,  to  Marine  Wharf  and  Storage  Company, 
made  in  1890.     In  connection  with  this,  it  may  be  well  also  to  state 

261 


CONSULAR  CASES 

that  the  propert}'  which  Parsons  bought  from  the  Marine  Wharf  con- 
sisted of  two  lots,  55  and  56,  concerning  the  latter  of  which  (namely, 
56)  there  is  no  question.  Lots  55  and  56  both  had  been  bought  by 
the  Marine  "Wliarf  and  Storage  Company  from  the  estate  of  Hunter, 
under  the  deed  from  Miles,  master,  in  1890.  Hunter  had  bought 
lot  56  from  some  third  party,  and  had  purchased  lot  55  under  the 
proceedings  in  the  suit  of  Holmes,  administrator,  against  Zanoguera, 
in  1875.  It  is  well  to  note  that,  at  the  time  of  the  giving  of  the 
bond  and  mortgage,  the  sole  objection  which  Mr.  (958)  Parsons  urged 
against  the  title  to  lot  55  was  the  fact  that  although  service  had  been 
made  upon  the  Zanoguera  minors  in  1875,  and  a  proof  of  such  ser- 
vice had  been  filed  in  the  form  of  an  affidavit,  this  affidavit  had  been 
taken  before  a  United  States  consular  agent,  and  at  that  time,  namely, 
in  1875.  a  United  States  consular  agent  was  not  authorized  in  Ma- 
jorca, Spain,  to  take  an  affidavit  under  the  laws  of  the  state  of  South 
Carolina.  This  was  the  only  question  raised  at  that  time  with  re- 
gard to  the  validity  of  the  title,  and  on  it  the  bond  is  conditioned, 
and  it  is  all  that  could  be  or  was  discussed  in  this  proceeding. 

"So  much,  then,  for  the  leading  facts  of  the  present  case.  It  is 
now  proper  to  examine  the  facts  in  the  record  of  the  old  suit  of  Holmes 
V.  Zanoguera,  in  1875.  At  that  time,  one  S.  Zanoguera,  then  a  resi- 
dent of  Charleston,  S.  C,  died,  leaving  a  widow,  Mrs.  Catalina  Zano- 
guera, and  certain  infant  children,  namely,  Catalina,  Elvira,  Mary, 
Antonio,  IMadelina,  ^Miguel,  and  Juanna  Maria.  Mr.  F.  P.  Salas  was 
appointed  by  the  probate  court  of  Charleston  county  general  guard- 
ian of  the  children,  and  Mr.  George  S.  Holmes  was  made  the  adminis- 
trator of  Sebastian  Zanoguera 's  estate.  This  was  done  on  the  peti- 
tion of  the  minors,  and  also  of  the  widow.  It  became  necessary 
to  sell  the  property  of  the  deceased,  and  the  widow  and  the  admin- 
istrator and  the  guardian  went  into  court,  asking  that  the  property 
be  sold,  all  the  debts  of  the  deceased  paid,  and  the  balance  turned 
over  to  the  widow  and  children.  Inasmuch  as  the  minors  seemed,  be- 
fore the  commencement  of  the  suit,  to  have  removed  to  the  island  of 
Majorca,  Spain,  and  to  have  resided  outside  of  this  state,  it  was  neces- 
sary to  serve  them  by  the  service  of  the  summons  and  complaint  upon 
the  mother  of  the  minors,  and  upon  the  general  guardian,  and  upon 
the  minors  themselves.  All  this  was  done,  Mrs.  Zanoguera  admitted 
that  she  and  the  children  had  been  served,  and  the  general  guardian 
also  acknowledged  these  facts,  and  asked  that  a  guardian  ad  litem  be 
appointed  for  the  minors,  to  protect  their  interests.  This  was  done, 
and  the  court  proceeded  and  settled  up  the  estate  for  all  the  parties 
in  interest.  The  record  shows  this  admission  of  service  on  the  part 
of  Mrs.  Zanoguera,  sworn  to  before  a  United  States  consular  agent 

262 


CONSULAR  CASES 

at  Palraa,  island  of  Majorca,  and  also  the  affidavit  of  the  general 
guardian  of  the  children,  Mr.  Salas,  to  the  same  effect.  Under  the 
order  of  court,  a  person  named  Miguel  Sbert  was  directed  to  make  the 
service  of  the  summons  and  complaint  upon  the  minors.  Miguel  Sbert 
did  this,  and  he  forthwith  made  an  affidavit  to  that  effect,  on  the  6th 
of  October,  1875,  before  Ernesto  Canut,  who  at  that  time  was  United 
States  consular  agent  at  Palma;  and  the  latter  certified  to  the  same 
under  his  official  hand  and  seal,  Miguel  Sbert  signing  the  affidavit 
before  him.  The  summons  was  also  published  in  the  newspaper,  but 
it  does  not  appear  that  the  order  directed  deposit  in  the  post  office, 
or  that  such  deposit  was  made.  The  cause  w^ent  on  to  trial  and  de- 
cree, and  the  property,  being  sold,  did  not  bring  enough  to  pay  even 
the  mortgages  on  it,  the  mortgagees  having  been  made  parties  to  the 
suit. 

"A  complete  summary  of  the  pleadings  in  this  old  case  is  also  of 
use,  and  will  now  be  given :  The  defendants,  in  addition  to  the  Zano- 
guera  heirs,  included  H.  M.  Haig,  a  lien  creditor,  having  a  mortgage 
on  the  property  in  question,  and  also  Ravenel,  Holmes  &  Co.  and  Wm. 
A.  Rook,  made  parties  to  represent  general  creditors.  The  complaint 
states  that  Zanoguera  died  intestate,  February  18,  1875,  leaving 
a  wife  and  children,  and  that  George  S.  Holmes  had  been  appointed 
administrator  of  his  estate  ,  at  the  request  of  all  parties  in  interest; 
that  he  o"v\Tied,  among  other  real  estate,  some  water  lots  in  Charles- 
ton, including  lot  55  in  a  plat  of  the  Laurens  marshes  (this  lot  55 
being  the  property  under  consideration  in  the  present  suit)  ;  that 
Zanoguera  was  largely  indebted;  that  Haig  had  a  mortgage  on  the 
real  estate  for  $6,500,  and  that  there  were  other  debts  amounting  to 
about  $25,000;  that  the  real  estate  consisted,  among  other  things,  of 
a  shipyard  and  machinery  which  was  liable  to  deterioration,  unless 
kept  in  good  repair  and  in  constant  use,  and  that,  Mrs.  Zanoguera  and 
all  parties  desired,  as  part  owners  in  the  property,  to  have  Mr.  Holmes, 
as  agent  and  as  administrator,  look  after  the  estate,  and  wind  up  the 
business;  that  the  probate  court  had  appointed  Mr.  F.  P.  Salas,  the 
Spanish  consul  in  Charleston,  general  guardian  of  all  the  children ; 
that  Ravenel,  Holmes  &  Company  and  Rook  were  the  largest  simple 
contract  creditors.  The  complaint  then  prays  the  temporary  carrying 
on  of  the  business,  and  a  sale  of  the  property  as  soon  as  possible.  An 
order  of  publication  was  taken,  and  then  the  service  was  made  in 
Majorca,  and  proved  by  the  affidavit  of  Miguel  Sbert;  and,  in  addi- 
tion to  this,  Mrs.  Zanoguera  made  an  affidavit  and  aclmowledgment 
before  the  consular  agent  that  the  paper  had  been  served  on  her 
children,  the  minors,  and  that  it  had  also  been  served  upon  her  after 
it  had  been  served  on  them.     After  this,  Mr,  Salas,  as  the  general 

263 


CONSULAR  CASES 

guardian  of  the  children,  under  the  laws  of  South  Carolina, 
came  in,  and  imder  oath  alleged  to  the  court  that  the  children  had 
been  legally  served,  and  that  it  was  necessary  to  have  a  guardian  ad 
litem  appointed  for  them;  and  the  court  then  and  there,  in  response 
to  these  allegations  of  Mr.  Salas,  appointed  him  their  guardian  ad 
litem.  The  mother  of  the  infants  filed  her  answer,  admitting  all  the 
facts,  and  also  gave  Mr.  "W.  P.  Hall,  a  merchant  of  Charleston,  power 
to  act  for  her.  All  the  other  defendants  admitted  the  complaint  ex- 
cept the  guardian  ad  litem,  and  he  filed  the  usual  answer  submitting 
the  rights  of  the  infants  to  the  court.  The  matter  was  referred  to 
the  master,  and  Haig  proved  his  mortgage  debt,  and  other  claims  were 
also  proved  to  the  amount  of  (959)  over  $9,000,  making  the  total  claims 
proved  something  like  $16,000.  The  decree  was  made,  and  the  prop- 
erty was  sold,  the  proceeds  not  being  enough  to  pay  the  mortgage  debt 
to  Haig.  One  sixth  of  the  unincumbered  real  estate  was  paid  over  to 
Mr.  Hall,  as  the  attorney  of  Mrs.  Zanoguera  the  widow,  for  her  dower. 
The  decree  of  the  court,  which  ordered  the  sale  of  the  property,  re- 
ferred to  all  of  the  proceedings,  took  notice  of  all  the  facts,  and 
ordered  the  sale.  The  sale  was  made  as  already  stated,  and  the  pro- 
ceeds went  to  the  payment  of  the  debts  of  the  ancestor,  Zanoguera.  It 
might  be  mentioned,  also,  that  the  general  guardian  of  the  infants, 
Mr.  Salas,  was  served  personally,  and  personally  made,  as  already 
stated,  imder  oath,  his  application  to  be  appointed  guardian  ad  litem, 
alleging  that  the  infants  had  been  legally  served  with  the  summons 
and  complaint.  It  should  also  be  noted  the  record  shows  that  Maria 
(who  it  is  alleged  in  the  answer  in  the  present  case,  subsequently 
grew  up,  married,  and  died,  leaving  a  husband  and  child,  and  con- 
cerning whose  share  alone  the  discussion  really  is  made)  was  then 
nine  years  old,  so  that,  if  she  had  lived,  her  age  would  be  to-day  about 
thirty  years.  The  record  in  this  old  suit  in  1875  speaks  for  itself, 
and  it  shows  a  carefully  conducted  case,  with  all  the  parties  appar- 
ently before  the  court,  including  the  minors,  who  were  represented 
by  their  general  guardian,  who  was  appointed  guardian  ad  litem;  their 
mother  also  being  before  the  court. 

* '  These  are  the  main  features  of  the  original  suit,  and  all  of  these 
matters  happened  nearly  twenty-one  years  ago.  Having  thus  fully 
set  out  the  facts  of  the  case  as  the  records  disclose  them,  it  will  now 
be  practicable  to  deal  with  the  legal  positions. 

"The  answer  sets  out  the  sole  alleged  defect,  namely,  the  proof 
of  service  by  Sbert  before  a  consular  agent  in  1875,  and  practically 
admits  that  the  affidavit  obtained  on  July  30,  1895,  cured  the  same, 
except  as  to  Maria,  Antonio,  and  Miguel,  who  did  not  sign  it,  and 
Juanna,  who,  it  is  alleged,  was  under  twenty-one  when  she  attached 

264 


CONSULAR  CASES 

her  signature.  All  question  as  to  the  other  heirs,  then,  is  at  once  elim- 
inated. So  far  as  Juanna  is  concerned,  the  mere  fact  that  she  was  not 
of  full  age  when  she  signed  the  affidavit,  in  July,  1895,  would  not 
seem  to  offer  any  difficulty,  for  several  reasons:  The  records  show 
she  was  then  over  twenty  years  old,  and  certainly  her  affidavit  would 
estop  her  from  ever  afterwards  disputing  the  truth  of  the  facts  sworn 
to  therein.  Besides  this,  she  was  subsequently  bound  by  the  decree 
of  September  7,  1895,  along  with  the  others,  as  will  be  shown  here- 
after ;  for,  it  not  being  alleged  in  the  answer  that  she  was  not  of  full 
age  when  this  decree  was  taken,  she  is  so  presumed  to  have  been.  And, 
even,  if  she  was  a  minor  when  the  decree  was  taken,  she  was  a  party 
to  the  suit ;  and  the  decree  against  her,  while  possibly  voidable  as  to 
her  in  a  direct  proceeding,  is  valid  and  binding  as  to  third  parties. 
She  would  be  therefore  barred  and  bound.  12  Am.  &  Eng.  Enc.  Law, 
p.  88;  1  Black,  J'udgm.  §  193;  1  Freem.  Judgm.  §  151.  As  to  the 
other  three  parties  ,  it  is  also  quite  apparent  that  the  new  suit,  in 
1895,  barred  and  bound  their  interests,  if  they  were  then  of  full  age, 
and  before  the  court.  Of  these  three,  Miguel  and  Antonio  are  easily 
next  disposed  of.  Nothing  at  all  is  alleged  of  Miguel  in  the  answer, 
and  he  being  of  full  age,  and  duly  made  a  party  to  the  new  proceed- 
ing, the  decree  of  the  court,  in  1895,  certainly  was  valid  and  binding 
as  to  him.  On  the  death  of  Antonio,  intestate,  his  interest  descended 
to  his  mother  and  brothers  and  sisters,  and  all  of  them  were  before 
the  court  in  1895,  and  thus  were  barred  and  bound  by  the  proceed- 
ings then  taken.  Maria  alone  is  now  left,  and  as  to  her  the  allegation 
of  the  answer  is  that  at  the  time  the  proceeding  to  declare  and  con- 
firm the  title  was  brought,  in  1895,  she  was  dead,  'having  died  in 
April,  1890,  leaving  as  her  heirs,  her  husband  and  a  child,  now  about 
six  years  old,  and  that  these  heirs  were  not  parties  to  the  said  pro- 
ceedings.' Thus,  about  Maria  and  her  share  only  is  there  any 
question  really  raised  in  the  answer,  or  worthy  of  being  considered; 
and  with  reference  to  her,  therefore,  will  the  discussion  now  proceed. 
"What  is  here  said  as  to  her,  however,  is  sometimes  also  applicable  to 
the  other  parties  referred  to  in  the  answer,  should  any  further  dis- 
cussion seem  necessary  as  to  them. 

"The  plaintiff,  on  argument,  took  several  positions,  which  all 
then  seemed,  and  still  seem,  sound.  In  the  first  place,  I  cannot 
bring  myself  to  do  otherwise  than  hold  that  the  oath  as  to  proof  of 
service  by  Miguel  Sbert  before  the  United  States  consular  agent,  in 
1875,  was  originally  a  valid  affidavit.  There  is  no  direct  case  in 
point  in  South  Carolina ;  but  an  examination  of  the  statutes  shuts  me 
up  to  this  conclusion,  the  alternative  being  a  construction  which  would 
make  the  Code  provision  a  nulity,  and  practically  repeal  it.     Code,  § 

265 


CONSULAR  CASES 

161  (act  1S70;  14  St.  at  Large,  p.  458)  gives  the  alternative  of  per- 
sonal service  outside  of  the  state,  instead  of  publication,  and  then 
provides  that  service  may  be  proved  'if  made  by  any  other  person' 
than  the  sheriff  by  'his  affidavit  thereof.'  Nothing  is  said  as  to  the 
character  of  the  officer  before  whom  this  affidavit  is  to  be  made.  The 
sole  question,  therefore,  is  whether  the  affidavit  of  Miguel  Sbert  was 
made  in  the  island  of  Majorca,  Spain,  before  one  authorized  legally 
there  to  administer  an  oath.  In  other  words,  was  it  then  and  there 
an  affidavit?  There  can  be  no  doubt  of  this.  Under  the  laws  of 
the  United  States  in  force  in  1875,  every  consular  agent  is  so  empower- 
ed, and  his  acts  are  to  be  given  the  same  force  and  effect  as  those  of  a 
'notary  public  or  any  other  person  so  authorized  or  competent  there- 
to in  the  United  States.'  Rev,  (960)  St.  U.  S.  1878,  p.  311.  'An 
affidavit  is  a  formal,  written  or  printed,  voluntary,  ex  parte  statement, 
sworn  or  affirmed  to  before  an  officer  authorized  to  take  it,  to  be  used 
in  legal  proceedings.'  And  it  must  'be  sworn  to  before  a  competent 
person, — that  is,  before  a  particular  officer  or  one  of  a  particular 
class,  where  a  statute  or  rule  of  court  requires  it ;  otherwise,  before  any 
one  authorized  to  administer  an  oath.'  1  Am.  &  Eng.  Enc.  Law,  307, 
308,  178.  Our  statute  and  rule  of  court  in  1875  being  silent  as  to  the 
character  of  the  officer  before  whom  the  affidavit  was  to  be  made,  '  any 
one  authorized  to  administer  an  oath'  could  take  and  certify  the  same. 
A  number  of  cases  from  courts  of  recognized  authority  have  been 
cited  supporting  this  view,  and  among  them  the  following  are  di- 
rectly in  point :  Tucker  v.  Ladd,  4  Cow.  47 ;  Wood  v.  Bank,  9  Cow. 
194,  200 ;  People  v.  Tioga  Common  Pleas,  7  Wend.  516 ;  Bank  v.  Cow- 
den,  3  Hill,  461.  The  very  question  as  to  affidavits  was  made  and  so 
ruled  upon  in  these  cases.  The  case  of  Woolfolk  v.  Manufacturing 
Co.,  22  S.  C.  337,  relied  on  by  defendant,  not  only  does  not  conflict 
with,  but  really  is  in  line  with,  the  decisions  above  referred  to,  for  the 
reason  that  the  statute  in  that  case  required  that,  before  a  deed  should 
be  recorded,  it  must  be  proved  by  the  oath  of  a  subscribing  witness; 
the  court  holding  that  the  provisions  of  the  law  with  regard  to  an  affi- 
davit before  a  magistrate  related  only  to  a  deed  executed  within 
the  state,  and  that  the  act  of  1788  had  specially  provided  for  the  proof 
of  a  deed  executed  out  of  the  state,  which  should  be  by  a  dedimus; 
and  that,  therefore,  there  being  a  special  provision  of  the  statute,  no 
other  mode  could  be  made  u.se  of.  The  whole  thing  was  statutory, 
and  the  court  so  stated.  In  the  case  of  Armstrong  v.  Austin,  how- 
ever, dff^idod  by  Chief  Justice  Mclver,  and  reported  in  22  S.  E.  767, 
the  court  refers  to  this  very  fact.  In  that  case  the  witness  making 
the  affidavit  did  not  sign  the  same,  and  it  was  urged  that  the  affidavit 
was  bad.    The  case  of  Woolfolk  v.  Manufacturing  Co.  was  evidently 

266 


CONSULAR  CASES 

pressed  upon  the  court,  but  the  court  replied  that  in  that  case  there 
were  the  express  terms  of  the  statute;  but  there  were  no  express 
terms  of  the  statute  as  to  the  signing  of  the  affidavit,  but  it  was  pro- 
vided merely  that  the  affidavit  should  be  made  by  a  subscribing  wit- 
ness, and  they  therefore  held  the  affidavit  to  be  sufficient.  These  two 
cases  point  to  the  very  conclusion  reached  in  the  present  decree,  and 
are  indications  of  the  intention  of  the  court  to  give  the  performance 
of  acts  under  statutes  a  reasonable  and  liberal  interpretation,  unless 
the  plain  terms  of  the  statute  demand  otherwise.  In  the  case  now  at 
bar  the  statute  uses  the  word  'affidavit,'  and  I  am  bound  to  avoid  a 
construction  which  would  practically  contradict  this  word,  and  annul 
the  statute  so  far  as  the  relief  of  personal  service  outside  of  the  state 
was  concerned.  There  was  no  officer  in  Spain  in  1875  qualified  by  the 
laws  of  South. Carolina  to  administer  an  oath,  for  a  dedimus  was  di- 
rected to  prove  a  deed  alone.  The  statute  clearly  intended  to  allow 
personal  service  outside  the  state  in  foreign  countries,  and  provided 
that  it  could  be  proved  by  the  'affidavit  of  the  persons  making  it.' 
I  cannot,  in  the  absence  of  a  decision  in  this  state  so  holding,  and  in 
the  face  of  decisions  to  the  contrary  elsewhere,  construe  away  these 
provisions  of  the  statute,  and  the  relief  they  afford,  and  the  rights 
vested  thereunder.  I  hold,  therefore,  that  the  proof  of  service  in  1875 
was  legal  and  valid. 

' '  It  would  seem  almost  useless  to  repeat  and  adopt  the  other  posi- 
tions of  the  plaintiff,  but  as  they  all  are,  in  my  opinion,  equally  con- 
clusive and  convincing,  it  becomes  my  duty  to  refer  to  them,  although 
briefly. 

"The  second  position  taken,  and  in  which  I  concur,  is  that  even 
if  the  original  affidavit  was  defective,  because  not  taken  before  an 
officer  qualified  by  the  laws  of  South  Carolina  to  administer  an  oath, 
then  this  was  a  mere  irregularity,  which  cannot  be  attacked  collater- 
ally, and  after  such  a  length  of  time.  There  is  a  presumption  in  favor 
of  the  regularity  of  judicial  proceedings,  and  this  presumption  be- 
comes conclusive  after  lapse  of  time,  and  without  objection  being 
made.  And  there  is  also  a  great  distinction  between  defective  service 
and  total  want  of  service.  In  one  case  the  judgment  is  void,  while 
in  the  case  of  defective  service  the  judgment  is  valid  until  set  aside  in 
direct  proceedings,  and  is  proof  against  collateral  attack.  22  Am. 
&  Eng.  Enc.  Law,  161.  Only  a  jurisdictional  defect,  appearing  on  the 
record,  can  be  taken  advantage  of  in  a  collateral  proceeding.  Darby 
v.  Shannon,  19  S.  C.  526;  Hahn  v.  Kelly,  94  Am.  Dec.  764.  From  the 
number  of  authorities  to  this  effect  in  our  state,  the  citation  of  only  a 
few  of  them  will  be  necessary  to  support  this  conclusion:  Tederall 
V.  Bouknight,  25  S.  C.  275,  279,  282;  Genobles  v.  West,  23  S.  C.  154, 

267 


CONSULAR  CASES 

167 ;  Lyles  v.  Haskell,  35  S.  C.  391,  14  S.  E.  829.  The  latter  case  is 
particularly  in  point,  inasmuch  as  in  it  the  court  stated  that  the  pur- 
chaser at  a  subsequent  judicial  sale  could  not  attack  for  irregularity 
some  prior  proceeding  affecting  the  title  to  the  property  purchased; 
and  the  court  held  that,  notwithstanding  a  good  deal  of  irregularity 
in  the  former  proceedings,  the  purchaser,  under  the  new  proceeding, 
was  not  in  a  position  to  question  it.  The  language  of  the  court  is 
instructive  on  this  point,  and  is  as  follows:  'There  was  an  order  of 
sale,  which  it  is  the  settled  policy  of  the  state  to  maintain  if  it  can 
be  done  without  \'iolating  principle  or  doing  injustice.  There  was  a 
judgment  rendered  by  a  competent  court  having  jurisdiction  of  the 
subject-matter,  and  that  presumes  that  all  things  were  rightly  done. 
Objections  to  mere  irregularity  in  the  proceedings  will  not  be  heard 
to  impeach  a  judgment.  Nothing,  in  (961)  fact,  will  be  allowed  col- 
laterally to  invalidate  a  title  acquired  under  it,  but  jurisdictional  de- 
fects which  appear  in  the  record.'  This  being  the  case,  the  question 
is  whether  the  alleged  defect  with  regard  to  the  proof  of  service  by 
Sbert,  in  1875,  was  jurisdictional,  or  a  mere  irregularity.  I  find  from 
cases  cited  that  almost  everywhere  it  has  been  held  that  an  alleged 
defect  of  this  sort,  even  if  it  be  a  defect  at  all,  is  treated  as  a  mere  ir- 
regularity, which  can  be  amended  at  any  time.  See  cases  of  Assur- 
ance Co.  v.  Everhart's  Adm'r  (Va.)  14  S.  E.  836;  Turner  v.  Holden, 
13  S.  E.  731,  109  N.  C.  182;  Shufeldt  v.  Barlass  (Neb.)  51  N.  W.  134, 
cited  at  page  5594,  Am.  Dig.  1892;  Railroad  Co.  v.  Ashby's  Trustees 
(Va.)  9  S.  E.  1003;  Tyler  v.  Jewell  (Ky.)  11  S.  W.  25,  cited  at  page 
4108,  Am.  Dig.  1889.  In  the  case  of  Forbes  v.  McHaffie  (Neb.)  49 
N.  W.  721,  it  was  held  that  although,  under  the  Nebraska  statute,  a 
special  deputy  appointed  to  serve  a  summons  was  required  to  make 
his  return  under  oath,  jurisdiction  was  obtained  if  no  objection  was 
made  to  the  return  on  that  ground,  although  the  return  was  not  under 
oath.  In  the  case  of  Hill  v.  Gordon.  45  Fed.  276,  where  there  was 
personal  service  on  the  defendant,  but  the  return  was  in  the  name  of 
the  special  deputy  marshal,  instead  of  the  marshal,  as  required  by 
the  statute,  this  was  decided  to  be  a  mere  irregularity,  to  which  an 
objection  could  not  be  raised  by  strangers  to  the  judgment.  It  there 
appeared  that  the  original  suit  was  brought  at  common  law  in  1869, 
while  the  new  suit,  between  different  parties,  was  brought  in  1890. 
The  language  of  the  court  is  peculiarly  appropriate  to  the  present  case, 
and  is  in  the  following  words:  'This  court  will  not,  at  this  late  day, 
say  that  the  court  who  tried  the  cause  was  so  remiss  in  its  duty  as  to 
allow  judgment  to  be  entered  in  a  cause  in  which  the  court  had  no 
jurisdiction.  *  •  *  It  is  contended  by  the  complainants  that  the 
court  had  no  jurisdiction  of  the  person  of  the  defendant,  John  T, 

268 


CONSULAR  CASES 

Matthews,  because  the  return  upon  the  original  writ  was  made  in  the 
name  of  a  special  deputy  United  States  marshal,  and  not  in  the  name 
of  the  marshal.  There  was  personal  service  upon  the  defendant,  and 
the  making  of  the  return  in  the  name  of  the  deputy  was,  at  the  most, 
only  an  irregularity,  which  the  defendant  above  could  take  advantage 
of  in  the  original  proceedings,  and  cannot  be  raised  by  strangers  to 
the  judgment.  I  am  of  opinion  that  the  court  had  jurisdiction,  both 
of  the  subject-matter  and  the  person  of  the  defendant.'  These  cases 
seem  to  be  overwhelming,  and  in  the  language  of  Lyles  v.  Haskell, 
35  S.  C.  391,  14  S.  E.  829,  it  is  evident  that  'there  was  no  surprise 
to  the  infants.  They  had  their  day  in  court.  They  derived  full  ben- 
efit from  the  proceeding,  and  they  are  not  here  making  complaint.' 
The  proof  of  original  service  in  the  old  suit,  therefore,  even  if  defec- 
tive, was  only  such  an  irregularity  as  cannot  be  questioned  in  this 
present  proceeding,  twenty-one  years  afterwards. 

"But  supposing,  for  the  purpose  of  argument,  that  the  defect 
was  not  a  mere  irregularity,  then  the  next  question  would  be  whether 
or  not  the  new  proceedings,  brought  in  1895,  cured  the  defect,  and 
are  binding  in  the  present  suit  on  the  purchaser.  I  am  of  opinion  that 
such  is  the  case.  It  will  be  remembered  that  in  1895  new  proceed- 
ings were  brought  against  all  the  former  defendants,  and  that,  after 
due  service  by  publication,  judgment  was  taken  against  them,  the 
court  holding  that  the  original  service  and  proceedings  had  been 
valid,  and  also  further  confirming  and  validating  the  title.  "We  have 
already  seen  that  the  record  in  one  suit  cannot  be  questioned  collater- 
ally in  another  suit,  by  third  parties,  save  for  jurisdictional  defects 
appearing  on  the  face  of  the  proceedings ;  and  the  further  rule  is  that 
facts  alleged  and  confirmed  by  judgment  in  one  suit  cannot  be  rebutted 
by  parol  testimony,  at  the  hands  of  third  parties,  in  another  suit. 
And  the  courts  hold  that  if  it  appears  and  the  record  shows  in  a  former 
suit  that  all  of  the  parties  were  of  full  age,  and  judgment  was  duly 
had,  third  parties  in  a  collateral  subsequent  suit  cannot  set  up  or 
prove  the  allegation  that  some  of  these  parties  in  the  former  suit  were 
minors.  Unless  the  record  in  the  first  proceeding  shows  the  contrary, 
it  must  be  judicially  held  that  the  court  had  acquired  the  necessary 
jurisdiction,  and  had  before  it  parties  against  whom  it  could  pro- 
nounce its  judgment.  Hahn  v.  Kelly,  94  Am.  Dec.  764.  Unless  the 
contrary  appeared,  therefore,  on  the  record  of  1895,  the  fact  of  all  of 
the  defendants  having  been  of  full  age,  and  of  all  of  them  having  been 
alive,  is  presumed,  as  matter  of  law;  and  the  judgment  of  the  court 
thereon  cannot  be  contradicted  by  parol  testimony  in  a  collateral  pro- 
ceeding, nor  can  allegations  to  this  effect  be  permitted.  Tederall  v. 
Bouknight,  25  S.  C.  275.    In  that  case  it  appeared  that  there  had  been 

269 


CONSULAR  CASES 

in  a  former  proceeding  a  partition  in  the  probate  court,  regular  on 
its  face,  in  which,  so  far  as  the  record  went,  all  of  the  parties  were  of 
full  age.  and  had  been  served.  In  the  subsequent  proceeding,  brought 
some  years  after,  the  court  held,  at  page  280,  that  the  defendants 
could  not  be  permitted  to  show  that  one  of  the  parties  to  the  former 
suit  in  the  probate  court  was  then  a  minor,  and  not  properly  before 
the  court ;  laying  down  the  doctrine  that  the  judgment  in  the  former 
suit,  regular  on  its  face,  must  be  taken  as  an  absolute  verity,  and  be- 
yond the  reach  of  contradiction  or  assault  in  a  collateral  manner.  In 
the  proceedings  in  1895,  the  record  to  formal  judgment  and  decree 
is  regular,  and  is  presumed  to  show  that  all  the  parties  were  before 
the  court,  and  that  all  were  alive,  and  that  all  were  of  full  age.  The 
present  proceeding,  which  is  a  collateral  one,  cannot  impeach  the 
former  record  by  parol  testimo-(962)ny,  nor  can  such  facts  be  alleged, 
for  that  cannot  be  alleged  which  should  not  be  permitted  to  be  proved. 
I  cannot,  therefore,  in  this  subsequent  proceeding  between  third 
parties,  permit  the  defendant  collaterally  to  impeach  the  record  of 
the  confirmation  suit  of  1895.  by  alleging,  and  therefore  obtaining,  as 
it  were,  permission  to  prove,  these  facts  as  to  minority  and  death, 
which  do  not  appear  in,  and  would  contradict,  the  former  record.  The 
original  parties,  in  a  direct  proceeding,  might  be  suffered  to  state  and 
prove  them;  but  this  dangerous  privilege  should  never  be  accorded  to 
strangers  in  a  collateral  suit.  I  feel,  then,  constrained  to  ignore  these 
facts,  and  strike  them  out  of  the  answer. 

"Lastly,  I  regard  the  bond  as  due,  by  its  o\vn  terms.  Further 
ruling  on  the  part  of  the  court  would  seem  almost  superfluous.  But 
I  am  constrained  to  say  that  I  am  not  by  any  means  clear  that  the 
defendant  had,  under  the  terms  of  his  bond,  the  slightest  right  to  in- 
terpose any  defenses  whatsoever,  although  I  have,  it  is  true,  listened 
to  and  discussed  them  all.  The  bond  of  the  defendant  states  that  it 
will  be  paid  as  soon  as  any  court  of  'competent  jurisdiction'  shall 
either  hold  the  original  title  to  have  been  good,  or  make  it  good  so 
far  as  the  old  alleged  defect  was  concerned.  Now,  in  1895  a  suit  was 
brought  against  the  parties  in  the  old  suit,  in  the  court  of  common 
pleas  for  Charleston  coimty. — this  very  court,  a  court  of  competent 
jurisdiction  ;  and,  after  proper  and  regular  proceedings,  the  court,  by 
its  order,  adjudged  and  decreed  that  the  former  proceedings  had  been 
valid  and  regular.  In  other  words,  it  'held'  the  former  title  to  have 
been  'good.'  It  is  shown  that  third  parties  cannot  question  this  col- 
laterally; but,  in  addition  to  this,  defendant  did  not  even  stand  in 
the  position  of  an  ordinary  third  party,  for  he  has  in  his  bond  express- 
ly agreed  that  if  any  court  of  competent  jurisdiction  were  to  hold  the 
title  good,  under  the  original  proceeding,  he  would  pay  his  bond.    A 

270 


CONSULAR  CASES 

court  of  competent  jurisdiction — this  very  court — has  done  this,  and 
the  decree  stands  of  record  here;  and  therefore  the  bond  is  payable. 
It  is  evident  that  the  court  which  passed  the  decree  in  1895  was  a 
court  of  competent  jurisdiction,  and  its  judgment  by  default  concluded 
everything  raised  by  the  proceedings.  Van  Fleet,  Coll.  Attack,  §  17 ; 
21  Am.  &  Eng.  Enc.  Law,  268,  269. 

"It  is  not  here  contended  that,  so  far  as  the  confirmation  and 
making  of  the  title  good  in  1895  is  concerned,  the  judgment  of  the 
court  could  bind  parties  not  before  it ;  but  the  question  as  to  whether 
the  title  had  formerly  been  good  was  also  raised  and  passed  upon, 
and  decision  was  made  on  that  very  point,  and  it  was  made  by  a  court 
of  competent  jurisdiction.  It  is  in  all  other  proceedings,  and  as  to 
everybody  except  heirs  who  were  not  parties  to  the  former  suit,  ab- 
solutely conclusive ;  and  even  as  to  these  heirs,  while  they  might  ques- 
tion the  correctness  of  this  conclusion  of  the  court  in  some  subsequent 
proceeding,  still,  if  the  court  reversed  the  decision  made  at  that  time, 
it  would  save  the  intervening  rights  of  third  parties.  It  may  be 
urged  by  the  other  side  that,  while  a  court  of  competent 
jurisdiction  has  held  this  title  to  have  been  valid,  the  su- 
preme court  might  not  agree  with  it.  This,  however,  I  cannot  regard. 
In  making  their  bond,  they  should  then  have  stated  that  they  would 
pay  it  when  a  court  of  competent  jurisdiction  and  of  last  resort  had 
declared  the  title  to  have  been  formerly  valid.  They  did  not  see  fit 
to  do  this,  and  a  court  of  competent  jurisdiction  having  passed  on  the 
very  question  set  out  in  the  bond,  and  having  declared  the  former 
title  to  have  been  valid,  the  bond  is  due  by  its  own  terms,  and  its 
payment  cannot  be  resisted  by  the  defendant, 

"For  all  these  reasons.  I  am  thus  unable  to  apprehend  any  de- 
fense in  the  answer,  and  must  therefore  grant  the  demurrer,  and 
strike  the  answer  out,  giving  the  necessary  default  judgment  in  fore- 
closure. It  is  therefore  ordered,  adjudged,  and  decreed  that  the  an- 
swer herein  be  stricken  out,  as  not  containing  or  stating  facts  suf- 
ficient to  constitute  a  defense.  Further  ordered,  adjudged,  and  de- 
creed that  plaintiff  do  have  judgment  by  default  against  the  defendant 
for  the  amount  of  the  bond,  eight  thousand  dollars,  with  interest  at 
the  rate  of  six  per  cent,  per  annum  from  the  17th  day  of  July,  1895, 
and  the  costs  of  this  proceeding.  Further  ordered,  adjudged,  and  de- 
creed that  the  defendant,  and  all  those  claiming  by,  through,  or  under 
him,  be  barred  of  all  equity  of  redemption  or  other  interests  in  the 
said  mortgaged  premises;  and  that  the  said  mortgaged  premises  be 
sold  at  public  auction,  by  G.  H.  Sass,  Esq.,  one  of  the  masters  of  this 
court,  after  due  advertisement,  according  to  law,  such  sale  to  take 
place  before  the  post  ofifice  at  Charleston,  S.  C,  on  Tuesday,  the  3d 

271 


CONSULAR  CASES 

day  of  August.  1896,  at  eleven  o'clock  a.  m. ;  the  terms  of  such  sale 
to  be  one-third  cash,  the  balance  to  be  secured  by  the  bond  of  the  pur- 
chaser and  a  mortgage  of  the  premises,  such  bond  to  be  payable  one 
and  two  years  from  date,  and  to  bear  interest  from  the  day  of  sale, 
at  the  rate  of  seven  per  cent,  per  annum,  payable  annually;  the  pur- 
chaser also  to  insure  the  property,  and  assign  the  same  as  further 
security  for  his  bond,  and  also  to  have  the  option  of  paying  cash  for 
the  premises ;  the  purchaser  to  pay  the  master  for  papers,  and  also  to 
pay  all  unpaid  state  and  city  taxes  payable  during  and  after  the  year 
1896.  It  is  further  ordered,  adjudged,  and  decreed  that  the  said 
master  shall,  after  paying  all  the  costs  and  expenses  of  these  pro- 
ceedings, and  of  the  sale  ordered  hereunder,  pay  and  discharge  in  full, 
with  all  interest  thereon,  the  bond  held  by  the  plaintiff,  and  that  he 
then  do  pay  over  the  balance  of  the  purchase  money  to  the  defendant 
herein. 

"The  following  is  a  description  of  the  (963)  premises  herein  or- 
dered sold :  All  those  two  wharf  properties  in  the  city  of  Charleston 
formerly  known  as  Hunter's  North  and  South  Wharves,  on  the  east 
side  of  Concord  street,  being  lots  known  as  lots  Nos.  55  and  56  in  a 
plan  of  Laurens  Marshes,  made  by  E.  B.  White,  surveyor,  recorded 
R.  M.  C.  0.,  Charleston  county,  in  Plat  Book  A,  page  156;  measuring 
on  the  north  line  525  feet,  on  the  south  line  492  feet,  on  the  east  line 
together  328  feet,  and  on  the  west  line  together  248  feet,  more  or  less; 
butting  north  on  lot  57,  and  south  on  lot  54,  in  said  plat,  west  on  Con- 
cord street,  and  east  on  the  channel  of  Cooper  river, — the  said  prop- 
erty being  the  same  that  was  conveyed  to  the  Marine  Wharf  and  Stor- 
age Company  by  Ch.  Richardson  Miles,  master,  by  deed  dated  31st 
of  July,  1890,  and  of  record  in  the  R.  M.  C.  0.  for  Charleston  county, 
in  Book  B,  21,  page  66,  and  having  been  since  that  time  known  as 
Marine  Wharf,  and  being  fully  delineated  and  set  out  in  a  plat  of 
the  same  made  on  September  7th,  1892,  by  Louis  J.  Barbot,  city  engi- 
neer, and  attached  to  a  conveyance  from  the  said  Marine  Wharf  and 
Storage  Company  to  Charles  Parsons,  Jr." 

From  this  decree  the  defendant  appealed  as  follows : 

"Please  take  notice  that  the  defendant  intends  to  appeal  from  the 
decretal  order  of  his  honor,  Judge  Benet,  made  in  this  cause,  and 
dated  12th  June,  1896,  and  also  that  the  defendant  excepts  to  said  de- 
cision on  the  following  grounds: 

"First,  Because  his  honor  erred  in  finding  that  to  the  suit  of 
plaintiff  against  Catalina  Zanoguera  et  al.,  commenced  in  July,  1895, 
that  all  the  heirs  of  Zanoguera  were  made  parties  defendant,  and  that 
the  record  shows  that  they  were  all  duly  and  regularly  served  by  pub- 
lication and  mailing  of  the  summons  and  complaint, — but,  on  the  con- 

272 


CONSULAR  CASES 

trary,  should  have  found  that  the  following  heirs  of  said  Zanoguera 
were  not  duly  made  parties,  and  were  not  duly  served,  viz. :  Mary  and 
Antonio,  who  were  then  deceased,  and  Joanna,  who  was  a  minor,  and 
for  whom  no  guardian  ad  litem  was  appointed. 

"Second,  Because  his  honor  erred  in  finding  that  in  July,  1895, 
there  was  obtained  an  affidavit  from  all  of  the  heirs  of  Zanoguera, 
then  in  the  Spanish  island  of  Majorca,  to  the  effect  that  all  of  the 
parties  had  been  served  in  the  former  cause,  but  his  honor  should 
have  found  that  such  affidavit  was  made  by  five  out  of  the  eight 
heirs;  that  one  of  these  (Joanna)  was  under  age;  and  that,  of  the 
rest,  Mary  and  Antonio  were  dead ;  and  that  they  and  Miguel  did  not 
sign  the  affidavit. 

"Third,  That  his  honor  erred  in  finding  with  regard  to  the  case 
of  Holmes  vs.  Zanoguera,  in  1875,  that  the  widow  and  the  adminis- 
trator and  the  guardian  went  into  court  asking  that  the  property  be 
sold,  but  should  have  found  that  the  administrator  was  the  sole  plain- 
tiff, and  all  others  were  named  as  defendants. 

* '  Fourth.  That  his  honor  erred  in  finding  with  regard  to  the  said 
case  of  Holmes  vs.  Zanoguera  that  it  being  necessary  to  serve  the  mi- 
nors by  service  of  the  summons  and  complaint  upon  the  mother  of  the 
mmors,  and  upon  the  general  guardian,  and  upon  the  minors  them- 
selves, that  '  all  this  was  done '  but,  on  the  contrary,  should  have  found 
that  there  was  no  proof  of  the  service  of  the  summons  upon  the  minors, 
as  the  alleged  affidavit  of  Miguel  Sbert  before  the  consular  agent  was 
not  the  proof  required  or  allowed  by  the  laws  of  this  state ;  also,  that 
his  honor  erred  in  holding  elsewhere  in  the  decree  that  such  service 
was  proved  by  the  affidavit  of  Miguel  Sbert. 

"Fifth.  Because  his  honor  erred  in  holding  that  the  record  in 
Holmes  vs.  Zanoguera,  the  suit  of  1875,  shows  a  case  with  all  the 
parties  apparently  before  the  court,  including  the  minors,  but,  on  the 
wntrary,  he  should  have  found  that  it  appears  on  the  face  of  the 
record  of  said  suit  that  there  is  no  legal  proof  of  the  service  of  the 
summons  on  the  said  minors,  the  only  proof  thereof  being  the  said 
alleged  affidavit  of  M.  Sbert,  taken  before  a  U.  S.  consular  agent,  and 
not  according  to  the  laws  of  this  state. 

"Sixth.  Because  his  honor  erred  in  holding  that  the  answer 
herein  practically  admits  that  the  affidavit  of  July,  1895,  cured  the  de- 
fects in  the  title  as  to  the  adults  who  signed  the  same,  and  that  all 
questions  as  to  them  are  eliminated,  but,  on  the  contrary,  should  have 
held  that  an  affidavit  so  taken  after  judgment  in  the  cause  of  Holmes 
vs.  Zanoguera,  in  1875,  was  not  sufficient  to  amount  to  a  proof  of  ser- 
vice, even  with  regard  to  the  adults  who  signed  the  same. 

"S'eventh.  That  his  honor  erred  in  holding  that  the  fact  that 

273 


CONSULAR  CASES 

Joanna  was  not  of  age  when  she  signed  the  affidavit,  in  1895,  would 
not  seein  to  offer  any  difficulty,  but,  on  the  contrary,  should  have  held 
that  such  affidavit  of  a  minor  would  not  be  equivalent  to  actual  legal 
service  on  the  minor  to  the  suit  in  1875,  nor  was  it  any  proof  thereof. 

"Eighth.  That  his  honor  erred  in  holding  that  Joanna  was  bound 
by  the  decree  of  1895,  but  should  have  found  that  she  was  not  sho\Mi 
to  be  then  of  full  age,  and  that  no  guardian  ad  litem  had  been  ap- 
pointed for  her. 

"Ninth.  That  his  honor  erred  in  holding  that,  if  Joanna  was  a 
minor  when  the  decree  of  1895  was  taken,  she  was  a  party  to  the  suit, 
and  the  decree  against  her,  while  possibly  voidable  as  to  her  in  a  di- 
rect proceeding,  is  valid  and  binding  as  to  third  parties  (she  would  be 
therefore  barred  and  bound),  but,  on  the  contrary,  should  have  held 
that  it  is  the  duty  of  a  purchaser  to  see  that  all  proper  persons  are 
proper!}'  made  parties  to  a  suit  affecting  the  title  which  he  purchases, 
and  that  he  is  not  bound  unless  all  proper  persons  are  properly  made 
parties;  and  Joanna  was  not  properly  made  a  party  in  the  cause  of 
1895,  because  she  was  (964)  under  age,  and  no  guardian  ad  litem  was 
appointed  for  her. 

"Tenth.  That  his  honor  erred  in  holding  that  the  suit  of  1895 
bound  the  interests  of  the  parties  if  they  were  then  of  full  age  and 
before  the  court,  and  so  bound  the  interest  of  Miguel  Zanoguera,  but 
should  have  held  that  the  said  suit  presented  no  case  stating  a  cause 
of  action  as  to  which  the  court  had  any  jurisdiction ;  i.  e.  that  the  sub- 
ject-matter of  the  suit  presented  no  cause  of  action,  and  so  neither 
Miguel  nor  any  of  the  other  parties  were  bound  thereby. 

"Eleventh.  That  his  honor  erred  in  holding  that  on  the  death 
of  Antonio,  intestate,  his  interest  descended  to  his  mother  and  brother 
and  sisters,  and  all  of  them  were  before  the  court  in  1895,  and  thus 
were  barred  and  bound  by  the  proceedings  then  taken,  but  should 
have  held  that  there  was  no  proof  that  Antonio  was  intestate,  nor  of 
the  time  of  his  death ;  that,  when  he  died,  he  was  not  bound  by  the 
decree  in  the  suit  of  1875 ;  that  if  he  was  interstate  when  he  died, 
that  then  what  of  his  interest  went  to  his  mother  and  brother  and 
sisters  was  interests  in  them  accruing  to  them  after  the  decree  in 
Holmes  vs.  Zanoguera,  and  could  not  be  affected  by  the  decree  in 
that  suit,  nor  by  that  of  the  suit  of  1895,  but  were  independent  titles 
in  them,  which  never  have  passed  to  the  defendant;  that,  if  he  died 
after  Mary,  then  the  infant  child  of  Mary  is  one  of  his  heirs,  and 
that  child's  title  never  pas.sed  to  the  defendant  herein;  and,  if  he 
died  before  her,  that  child  still  has  the  part  of  his  interest  that  it  takes 
from  its  mother. 

"Twelfth.  That  his  honor  erred  in  holding,  in  considering  the 

274 


CONSULAR  CASES 

case  as  to  Maria  and  her  share,  that,  the  oath  as  to  proof  of  service 
by  M.  Sbert  before  the  U.  S.  consular  agent,  in  1875,  was  originally 
a  valid  affidavit,  but  should  have  held  that  it  was  not  an  affidavit 
nor  proof  of  service  required  or  allowed  by  the  laws  of  this  state, 
and  that  such  oath  was  not  an  affidavit  recognized  by  our  law. 

"Thirteenth.  That  his  honor  erred  in  holding  that  the  proof 
of  service  in  1875  was  legal  and  valid,  but  should  have  found  the 
contrary. 

"Fourteenth.  That  his  honor  erred  in  holding  that,  even  if  the 
original  affidavit  of  service  of  1875  was  defective,  then  this  was  a  mere 
irregularity,  which  cannot  be  attacked  collaterally,  and  after  such  a 
length  of  time,  but  should  have  held  that  it  is  the  duty  of  a  purchaser 
taking  title  coming  imder  a  sale  by  the  court  to  see  that  the  court  has 
jurisdiction  of  the  subject-matter  and  of  the  parties,  and  that,  if  the 
court  does  not  have  jurisdiction  in  either  respect,  he  is  not  bound  to 
take  such  a  title,  and  he  is  entitled  to  have  it  shown  that  the  court 
has  jurisdiction;  and,  further,  that,  with  regard  to  the  suit  of  1875, 
the  want  of  jurisdiction  of  the  minors  was  apparent  on  the  face  of 
the  record  of  that  suit ;  and  that  there  can  be  no  presumption  in  favor 
of  the  regularity  of  the  decree  in  that  suit,  when  the  record  itself  dis- 
closes the  defect. 

"Fifteenth.  That  his  honor  erred  in  holding  that,  even  if  the 
defect  of  1875  was  not  a  mere  irregularity,  the  suit  of  1895  cured  the 
defect,  and  is  binding  in  the  present  suit  on  the  purchaser,  but  should 
have  held  that  the  suit  of  1895  had  and  could  have  no  effect  in  curing 
any  defect  in  the  suit  of  1875,  because  of  the  named  parties  thereto,  at 
least  two,  viz.  Antonio  and  Mary,  had  previously  died,  and  Mary  had 
died  in  April,  1890,  leaving  a  young  infant  child,  not  named  in  the 
complaint,  and  so  could  not  have  been  served  by  publication  or  in  any 
other  way,  and  that  to  such  proceedings  this  defendant  was  not  a 
party,  and  that  the  judgment  in  that  cause  was  not  the  judgment  of 
a  court  of  competent  jurisdiction,  because  as  to,  at  least,  the  said  two 
named  parties,  the  court  had  no  jurisdiction,  nor  did  it  undertake  to 
exercise  any  jurisdiction  over  the  interests  which  descended  to  their 
heirs ;  and,  further,  his  honor  should  have  held  that  in  this  present  suit 
it  was  a  good  defense  to  the  bond  to  show  that  the  title  had  not  been 
held  or  made  good  by  a  court  of  competent  jurisdiction,  and  that,  in 
maintaining  that  defense,  it  was  competent  for  him  to  show  that  for 
any  reason  the  court  had  no  jurisdiction  of  the  cause  or  parties,  or  any 
of  them,  in  the  suit  of  1895, — and  that,  whether  the  want  of  jurisdic- 
tion appeared  on  the  face  of  the  record  or  not. 

* '  Sixteenth.  That  his  honor  erred  in  holding  that  a  court  of  com- 
petent jurisdiction  has  decreed  the  title  to  be  good  by  the  decree  of 

275 


CONSULAR  CASES 

1895,  but  should  have  held  that  it  had  no  jurisdiction  as  to  said  two 
heirs  then  deceased;  and  such  want  of  jurisdiction  can  be  set  up  by 
defendant  in  this  case  under  the  terms  of  the  bond  sued  on,  and 
whether  or  not  such  want  of  jurisdiction  appears  on  the  face  of  the 
record  or  not. 

' '  Seventeenth.  That  his  honor  erred  in  ordering  the  answer  to  be 
stricken  out,  and  in  giving  judgment  for  plaintiff,  but  should  have 
overruled  the  demurrer  to  the  answer,  and  should  have  awarded  judg- 
ment in  favor  of  the  defendant. 

"Eighteenth.  That  his  honor  erred  in  holding  that  all  of  the  heirs 
of  Zanoguera  who  had  been  defendants  in  the  former  proceeding  of 
Holmes  vs.  Zanoguera  were  all  duly  and  regularly  served  by  publica- 
tion and  mailing  of  the  summons  and  complaint  in  the  suit  instituted 
by  the  Marine  Wharf  and  Storage  Company  in  1895,  it  being  al- 
leged by  the  answer  and  admitted  by  the  demurrer  that  Maria,  one  of 
the  heirs  of  Zanoguera,  and  a  party  to  the  original  proceedings,  had 
died  in  April,  1890,  leaving,  surviving  her,  a  husband  and  child,  who 
were  not  parties  to  the  second  suit. 

"Nineteenth.  That  his  honor  erred  in  finding  that  the  admission 
made  by  Joanna,  a  minor,  in  1895,  that  she  had  been  served  in  (965) 
the  original  proceedings,  was  the  evidence  of  service  in  said  proceed- 
ing required  by  the  law  of  this  state. 

"Twentieth.  Because  his  honor  erred  in  holding  that  it  was  not 
competent  for  the  defendant  to  allege  or  prove  that  necessary  parties 
had  not  been  made  in  the  suit  instituted  in  1895  for  the  confirmation 
of  plaintiff's  title. 

' '  Twenty-First.  Because  his  honor  erred  in  holding  that  the  de- 
cree made  the  confirmation  proceedings  of  1895  was  the  decree  of  a 
court  of  competent  jurisdiction,  holding  the  plaintiff's  title  to  be  good, 
although  the  court  had  not  acquired  jurisdiction  over  the  persons  of 
several  of  the  parties  interested  in  the  property. ' ' 

Lord  &  Burke,  for  appellant.  Smythe,  Lee  &  Frost,  for  re- 
spondent. 

JONES,  J.  This  is  a  suit  for  the  foreclosure  of  a  mortgage  of 
real  estate  executed  by  defendant  to  plaintiff,  July  17,  1895,  to  se- 
cure a  bond  of  same  date  for  the  purchase  money,  conditioned  to  pay 
a  certain  sum,  with  specified  interest,  five  years  from  its  date,  or  as 
soon  before  that  time  as  the  title  to  the  mortgaged  premises  shall,  by 
a  court  of  competent  jurisdiction,  be  held  or  made  good,  so  far  as  an 
alleged  defect  alone  is  concerned.  Suit  was  commenced  in  November, 
1895.  The  alleged  defect  is  set  forth  in  the  bond,  as  follows:  "That 
in  the  case  of  G.  S.  Holmes,  administrator,  against  Zanoguera  et  al., 

276 


CONSULAR  CASES 

filed  and  of  record  in  the  court  of  common  pleas  for  Charleston 
county,  in  which  suit  said  lot  55  [the  mortgaged  premises]  was  sold, 
the  proof  of  service  upon  certain  minor  defendants  was  made  by  the 
affidavit  of  Miguel  Sbert,  the  person  serving  said  minors,  before  a  con- 
sular agent  of  the  United  States  in  the  island  of  Majorca,  kingdom  of 
Spain,  which  said  affidavit  is  alleged  to  be  defective  and  not  taken 
before  the  proper  officer."  The  complaint,  after  the  usual  allega- 
tions in  such  cases,  further  alleged  that  the  alleged  defect  does  not, 
and  never  did,  affect  the  validity  of  the  title  to  the  said  property,  but 
that,  in  order  to  further  assure  and  remove  all  questions  from  the 
same,  the  plaintiff  obtained  from  said  Zanoguera  heirs,  on  the  30th 
July,  1895,  an  affidavit  before  the  Unites  States  consular  agent  in 
Majorca,  Spain,  to  the  effect  that  the  service  had  actually  been  made 
by  the  said  Miguel  Sbert  (since  deceased),  as  set  out  in  the  former 
affidavit  of  said  Sbert  in  the  case  of  Holmes,  administrator,  against 
Zanoguera,  in  1875;  and  that  said  affidavit  of  30th  July,  1895,  had 
been  forthwith  filed  in  the  records  of  said  cause  nunc  pro  tunc,  as 
further  proof  of  service.  The  complaint  further  alleged  that,  in  order 
to  still  further  remove  all  shadow  of  the  alleged  defect  from  said 
title,  the  plaintiff'  filed,  in  the  common  pleas  court  for  Charleston 
county,  summons  and  complaint  against  the  heirs  at  law  of  Sebastian 
Zanoguera,  wherein  it  referred  to  the  suit  of  Holmes,  administrator, 
against  Zanoguera,  and  the  alleged  irregularity  in  the  proof  of  service, 
and  prayed  the  court  to  declare  the  said  proceedings  and  proof  of 
service  regular  and  valid,  and  no  cloud  on  the  title  of  this  plaintiff, 
or  else  confirm  the  said  former  proceedings;  that  on  the  7th  day  of 
September,  1895,  Judge  0.  W.  Buchanan  therein  decreed  the  pro- 
ceedings in  the  case  of  Holmes,  administrator,  against  Zanoguera,  to 
have  been  valid  and  binding,  and  further  confirmed  and  ratified  them 
in  all  respects  and  vested  and  validated  in  plaintiff  the  title  to  the 
property  in  question,  and  that  said  judgment  stands  of  force  and  un- 
appealed  from.  The  complaint  then  alleged  that  the  title  to  the  mort- 
gaged property  has  been,  in  a  court  of  competent  jurisdiction,  held 
and  made  good  so  far  as  the  alleged  defect  referred  to  in  said  bond  is 
concerned,  and  that  the  court  should  declare  the  condition  of  said 
bond  and  mortgage  broken.  To  this  end  the  complaint  prayed,  and 
for  foreclosure.  The  answer  denies  that  the  condition  of  said  bond 
has  been  broken,  and  alleges  that  the  matters  referred  to  in  said  bond 
did  and  do  affect  the  validity  of  the  title  of  the  said  premises ;  that  in 
a  chain  of  title  is  a  conveyance  of  said  premises  by  A.  J.  White  to 
Sebastian  Zanoguera,  dated  27th  March,  1872;  that,  under  proceed- 
ings for  settlement  of  the  estate  of  said  Sebastian  Zanoguera,  the  said 
premises  were  conveyed  by  the  sheriff  of  Charleston  county  to  Robert 

277 


CONSULAR  CASES 

Himter,  January  6,  1876;  that,  on  settlement  of  the  estate  of  Robert 
Hunter,  said  premises  were  conveyed  by  a  master  of  said  court  to 
the  plaintiff,  July  31,  1890,  and  that  on  17th  July,  1895,  plaintiff  con- 
veyed same  to  defendant ;  that  in  said  proceedings  for  settlement  of 
the  estate  of  Sebastian  Zanoguera,  who  died  intestate,  his  widow  and 
seven  minor  children  were  named  as  parties,  but  there  is  no  proof 
of  the  service  of  the  summons  on  the  said  infant  defendants,  who  were 
then  aged  about  1,  3,  4,  6,  9,  13,  and  16  years,  respectively,  except  an 
afiidavit  of  service  before  a  United  States  consular  agent,  as  set  out 
in  the  bond  annexed  to  the  complaint.  As  to  the  affidavit  of  July  30, 
1895,  the  answer  admitted  that  such  an  afiidavit  was  obtained  from 
some  of  the  heirs  of  said  Sebastian  Zanoguera,  but  alleged  that  some 
of  the  heirs,  ^Maria,  Antonio,  and  Miguel,  did  not  sign  the  affidavit,  and 
alleged  on  information  and  belief  that  Maria  and  Antonio  are  dead, 
and  that  Joanna,  who  did  sign  the  affidavit,  was  then  under  21  years 
of  age.  As  to  the  proceeding  in  the  case  of  the  Marine  Wharf  & 
Storage  Company  against  Catalina  Zanoguera  and  others,  in  1895, 
referred  to  in  the  complaint,  the  answer  alleged  that  at  that  time  the 
said  Maria  was  dead,  having  died  in  April,  1890,  leaving,  as  her  heirs, 
her  husband  and  a  child,  now  about  six  years  old,  and  that  these  heirs 
were  not  parties  to  said  proceedings.  Plaintiff  demurred  to  the  an- 
swer, on  the  ground  that  it  did  not  state  facts  sufficient  to  constitute 
a  (966)  defense.  His  honor,  Judge  Benet,  hearing  the  cause,  sus- 
tained the  demurrer,  and  made  decree  for  foreclosure.  This  decree 
and  the  grounds  of  appeal  therefrom  will  be  found  set  out  in  the  re- 
port of  this  case. 

The  exceptions,  in  ultimate  analysis,  raise  in  general  one  control- 
ling question,  viz.  whether  the  condition  of  said  bond  had  been  broken 
at  the  time  of  the  commencement  of  this  action.  As  showTi  by  the 
terms  of  the  bond,  it  was  payable  (1)  within  five  years  from  its  date, 
(2)  or  as  soon  before  that  time  as  the  title  to  said  premises  shall  by  a 
court  of  competent  jurisdiction  be  held  or  made  good  so  far  as  the 
alleged  defect  alone  is  concerned.  The  action  having  been  com- 
menced within  the  five  years,  it  remains  to  ascertain  if  a  court  of 
competent  jurisdiction  had,  previous  to  the  commencement  of  this 
action,  held  or  made  good  said  title.  The  record  in  the  case  of  the 
Marine  Wharf  &  Storage  Company  against  Catalina  Zanoguera,  the 
elder,  Catalina  Zanoguera,  the  younger,  Elvira  Zanoguera,  Maria 
Zanoguera,  Antonio  Zanoguera,  Madilina  Zanoguera,  Miguel  Zano- 
guera, and  Joanna  Minie  Zanoguera,  was  made  a  part  of  the  com- 
plaint, and  was  not  questioned  by  defendant,  except  as  hereinafter 
noticed,  and  shows  on  its  face  that  the  summons  and  complaint 
therein  were  duly  and  legally  served  by  publication,  and  due  proof 

278 


CONSULAR  CASES 

of  same  made.  The  court  of  common  pleas  for  the  county  of  Charles- 
ton, having  power  to  hear  and  determine  such  a  cause,  having  juris- 
diction over  the  subject-matter,  and  complying  fully  with  the  statute 
as  to  service  of  summons  by  publication,  was  a  court  of  competent 
jurisdiction.  By  its  judgment,  September  7,  1895,  it  declared  the 
proceedings  in  the  said  cause  of  Holmes,  administrator,  against  Zano- 
guera,  "to  have  been  valid  and  binding,"  and  proceeded,  further,  to 
confirm  and  ratify  the  same  in  all  respects,  and  declared  the  title  to 
the  property  in  question  to  be  vested  and  validated  in  the  plaintiff, 
etc.  Defendant's  title  to  the  premises,  as  grantee  of  the  plaintiff, 
was  therefore  held  good  on  September  7,  1895,  by  a  court  of  compe- 
tent jurisdiction,  when,  by  its  terms,  the  bond  became  payable. 

So  far  as  the  question  before  us  is  concerned,  it  makes  no  dif- 
ference that  it  appears  dehors  the  record  that  two  of  the  Zanoguera 
heirs,  Maria  and  Antonio,  were  dead  at  the  time  of  the  proceedings 
in  1895,  Maria  leaving  a  husband  and  infant  child,  who  were  not 
parties  thereto ;  nor  is  it  material  that  Joanna  was  under  21  years  of 
age  on  the  30th  July,  1895,  when  the  affidavit  was  signed.  It  does 
not  appear  that  she  was  not  21  years  old  at  the  commencement  of  the 
proceedings  later,  in  1895,  and  the  presumption  is  that  she  was. 
The  judgment  of  Judge  Buchanan,  September  7,  1895,  was  regular 
on  its  face.  Nothing  whatever  appears  in  the  record  to  impeach  it. 
It  is  not  void,  and  cannot  be  assailed  collaterally,  especially  by  de- 
fendant. Darby  v.  Shannon,  19  S.  C.  526;  Hunter  v.  Ruff  (S.  C.)  25 
S.  E.  74.  In  reaching  the  conclusion  that  the  proceedings,  including 
the  proof  of  service,  on  all  the  Zanoguera  heirs,  in  the  case  of  Holmes, 
administrator,  against  Zanoguera,  was  valid  and  binding,  Judge 
Buchanan  must  have  decided  that  the  proof  of  service  of  the  summons 
and  complaint  on  the  Zanoguera  heirs,  October  6,  1875,  by  the  affidavit 
of  Miguel  Sbert,  before  Ernesto  Canut,  United  States  consular  agent, 
was  a  compliance  with  the  statute,  or  that  the  proof  of  service  was  a 
mere  irregularity,  which  was  cured  by  the  affidavit  of  July  30,  1895, 
filed  with  the  record.  In  either  view,  his  judgment  was  the  judgment 
of  a  court  of  competent  jurisdiction,  holding  the  title  in  question  to 
be  good.  This  being  so,  the  bond  became  payable  on  the  filing  of  this 
judgment. 

Having  reached  this  conclusion,  we  think  it  quite  unnecessary  to 
consider  the  other  matters  so  ably  and  satisfactorily  discussed  in  the 
opinion  of  Judge  Benet.  We  concur  fully  with  the  circuit  court  that 
the  proceedings  in  the  case  of  Holmes,  administrator,  against  Zano- 
guera et  al.,  were  regular,  valid,  and  binding  on  all  the  minor  de- 
fendants therein.  It  will  be  observed  that  the  bond  itself  and  the 
pleadings  assume  as  true  that  Ernesto  Canut  was  a  consular  agent  of 

279 


CONSULAR  CASES 

the  United  States  in  Majorca,  Spain.  The  alleged  defect  was  that 
Ernesto  Canut,  though  United  States  consul,  was  not  authorized  to 
administer  the  oath  to  the  affidavit  of  Miguel  Sbert,  who  served  the 
minors.  The  code  (section  158),  as  it  stood  at  that  time,  required  that 
in  addition  to  publication,  in  the  case  of  minors  who  could  not  be 
found  within  the  state,  service  of  summons  and  complaint  should  be 
made  by  delivering  a  copy  thereof  to  the  minor  personally,  and,  if 
under  the  age  of  1-i  years,  also  to  his  or  her  father,  mother,  or 
guardian,  etc.  It  further  provided  that  "proof  of  such  personal 
service  shall  be  made  by  affidavit  of  the  party  delivering  the  copy, 
summons  and  complaint  properly  authenticated."  An  "affidavit"  is 
defined  in  1  Am.  &  Eng.  Enc.  Law,  p.  307,  to  be  "a  formal  written 
(or  printed)  voluntary  ex  parte  statement  sworn  (or  affirmed)  to  be- 
fore an  officer  authoribed  to  take  it,  to  be  used  in  legal  proceedings." 
Unless  a  statute  or  rule  of  court  otherwise  requires,  any  one  authorized 
to  administer  an  oath  may  take  an  affidavit.  Id,  p.  309.  In  the  ab- 
sence of  some  statute  or  rule  of  court  providing  otherwise,  proof  of 
service  on  a  nonresident  may  be  made  by  affidavit  taken  before  any 
officer  qualified  by  law  to  take  affidavits  where  the  affidavit  is  made. 
The  officer's  signature  and  seal  is  a  sufficient  authentication,  unless 
some  statute  or  rule  of  court  requires  further  authentication.  In  this 
case  the  affidavit  contains  all  the  requisites  of  an  affidavit  properly 
authenticated  if  Ernesto  Canut,  conceded  to  have  been  at  the  time  a 
United  States  consul  at  Majorca,  Spain,  was  qualified  to  administer 
such  oath.  That  he  was  so  qualified  under  the  laws  of  the  United 
States  is  shown  in  Rev.  St.  U.  S.  1878,  p.  311,  wherein  every  consular 
agent  is  "authorized  to  (967)  administer  to  or  take  from  any  person 
any  oath,  affirmation,  affidavit,  or  deposition,  and  to  perform  any 
notarial  act  which  any  notary  public  is  required  or  authorized  by 
law  to  do  within  the  United  States.  Every  such  oath,  affirmation,  affi- 
davit, deposition  and  notarial  act,  administered,  sworn,  affirmed,  taken 
out  or  done  by,  or  before,  any  such  officer,  when  certified  under  his 
hand  and  seal  of  office,  shall  be  as  valid  and  of  like  force  and  effect 
within  the  United  States,  to  all  intents  and  purposes,  as  if  admin- 
istered, sworn,  affirmed,  taken  out,  or  done  by  before  any  other  person 
within  the  United  States,  duly  authorized  and  competent  thereto." 
This  act  was  passed  in  1856,  was  therefore  in  force  when  the  provisions 
of  the  code  as  to  proof  of  service  on  nonresidents  was  adopted,  and 
we  assume  the  legislature  had  in  mind  the  right  of  a  United  States 
consul  to  take  an  affidavit  when  this  provision  was  adopted.  In  1884, 
section  159  of  the  code  was  amended,  giving  more  specific  directions 
as  to  the  proof  of  sorvice  of  process  when  made  out  of  the  state,  and 
it  is  therein  provided:    "If  [the  service]  is  made  without  the  limits 

280 


CONSULAR  CASES 

of  the  United  States,  [prof  thereof  may  be  made]  before  a  consul  or 
vice  consul  or  consular  agent  of  the  United  States  who  shall  use  in 
his  certificate  his  official  seal."  The  case  of  Woolfolk  v.  Manufac- 
turing Co.,  22  S.  C.  337,  cited  in  behalf  of  appellant,  is  not  in  conflict 
with  the  view  here  announced.  In  that  case  it  was  held  that,  under 
our  registry  laws  in  force  in  1820,  a  deed  executed  in  South  Carolina, 
and  proved  before  a  magistrate  in  Georgia,  was  not  prop- 
erly probated  for  record,  because  the  act  required  such  a 
deed  to  be  probated  ''before  a  judge  of  the  supreme  court,  or  a  mag- 
istrate out  of  the  court."  The  court  held  that  these  words  "meant 
officers  of  this  state,  commissioned  by  this  state,  and  acting  within  this 
state."  In  the  case  at  bar  no  officer  was  specified  as  the  person  who 
should  take  the  affidavit. 

If  the  proceedings  in  1875  were  not  defective,  it  becomes  unnec- 
essary to  consider  what  curative  effect  subsequent  proceedings  have 
thereon.    The  judgment  of  the  circuit  court  is  affirmed. 

MARSHALL  v.  CEITICO,  (1808,  Great  Britain) 

9  East  447. 

Lord  Ellenborough,  King's  Bench. 

[Counsel  for  defendant  claimed  that  as  a  consul-general  he  was 
privileged  from  arrest  even  though  he  had  been  dismissed  before  his 
arrest  considering  that  he  was  not  yet  informed  of  his  dismissal  and 
continued  to  act  as  consul-general. — Ed.] 

(Extract)  This  is  not  a  privilege  of  the  person,  but  of  the  state 
which  he  represents.  And  that  state  having  some  months  before  de- 
vested him  of  the  character  in  which  he  claims  the  privilege,  and  ap- 
pointed another  person  here  to  exercise  it;  there  is  no  just  reason 
why  the  defendant  should  not  be  subject  to  process  as  other  persons ; 
nor  for  the  state,  by  which  he  had  been  so  dismissed  from  his  employ- 
ment, to  take  offence  at  his  arrest. 

MARSTON  V.  UNITED  STATES,  (1896,  U.  S.) 

71  Fed.  E€p.  496. 
Woods,  Circuit  Court. 

[American  consul  removed  from  office  before  end  of  fiscal  year 
is  only  entitled  to  retain  a  part  of  the  fees  collected  proportional  to 
the  part  of  the  fiscal  year  during  which  he  has  held  office. — Ed.] 

MARY,  THE,  See  Wilson  v.  The  Mary. 

MARY  FORD,  THE,  See  M'Donough  v.  Dannery. 

281 


CONSULAR  CASES 
MATHESON  v.  CAMPBELL.  (1895,  U.  S.) 

69  Fed.  Rep.  597. 

Toivnscnd,  Circuit  Court. 

TOWNSEND,  District  Judge.  (Extract)  Final  hearing  on  bill 
for  injimction  and  accounting.  Complainant  alleges  infringement  of 
patent  No.  345.901  for  naphthol-black  color  compound,  granted  July 
20,  1886,  to  Meinliard  Hoffmann  and  Arthur  Weinberg,  and  assigned 
to  complainant  July  10,  1888. 

A  preliminary  question  suggested  by  defendant  is  whether  an  as- 
signment which  purports  to  have  been  executed  before  the  consul 
general  of  the  United  States  of  Frankfort-on-the-Main,  Germany,  is 
sufficiently  proved  by  the  signature  of  said  consul  general  and  the 
United  States  consulate  general  seal.  I  think  this  proof  is  sufficient, 
under  the  statutes  of  the  United  States  and  of  the  state  of  New  York. 
Rev.  St.  U.  S.  sect.  1750;  Pharmical  Ass'n  v.  Tilden,  14  Fed.  740: 
Houghton  V.  Jones,  1  Wall.  702. 

MATHEWS  V.  UNITED  STATES,  (1887,  U.  S.) 

123  U.  S.  182. 

Harlan,  Supreme  Court. 

[Question  of  salary  and  involves  no  consular  question. — Ed.] 

MATTHEWS  v.  OFFLEY,  (1837,  U.  S.) 
3  Sumn.  115;  Fed.  Cases  9,290. 
Story,  Circuit  Court. 

(122)  (Extract)  The  next  question  is  to  the  ruling  of  the  learned 
judge  of  the  district  court,  in  admitting  the  certificate  of  the  vice 
consul,  stated  in  the  bill  of  exceptions,  as  prima  facie  evidence  of  all 
the  facts  therein  certified ;  whereas,  the  counsel  for  the  original  de- 
fendant contended,  and  now  contend,  that  it  was  not  evidence,  except 
of  the  refusal  of  the  defendant  to  take  the  seaman  on  board.  The 
fourth  section  of  the  act  of  1803,  after  the  provisions,  which  have  been 
already  alluded  to,  proceeds  to  declare;  "And  the  certificate  of  such 
consul  or  commercial  agent,  given  under  his  hand  and  official  seal, 
shall  be  prima  facir  evidence  of  such  refusal,  in  any  court  of  law 
having  jurisdiction  for  the  recovery  of  the  penalty  aforesaid."  The 
whole  question  turns  upon  (123)  what  is  to  be  luiderstood  as  intended 
to  be  included  in  the  statute.  Is  it  the  dry  naked  fact,  that  the  master 
refused  to  take  a  seaman  on  board,  giving  his  name,  at  the  request 
of  the  consul.  &c.  ?  Or  does  the  statute  mean  by  the  words  "such 
refusal,"  a  refusal  under  the  circumstances  stated  in  the  preceding 
part  of  the  section?    My  opinion  is,  that  the  latter  is  the  true  inter- 

282 


CONSULAR  CASES 

pretation  of  the  statute.  It  meant  to  provide,  that  the  certificate  should 
contain  and  be  evidence,  prima  facie,  of  all  facts  stated  in  the  enact- 
ing clause  of  the  section,  which  is  necessary  to  bring  the  case  within 
the  penalty;  for  all  those  facts  are  indispensable  to  make  it  "such  re- 
fusal" as  the  statute  contemplates.  Upon  any  other  construction  the 
enactment  would  be  wholly  nugatory  for  all  the  purposes  of  enforcing 
the  statute;  since  every  material  fact  to  enforce  the  penalty  must  be 
proved  aliunde  the  certificate.  The  statute  placed  confidence  in  the 
consul,  as  a  public  officer,  bound  to  the  performance  of  highly  re- 
sponsible duties,  and  meant  to  make  his  certificate  the  proper  and 
ordinary  proof,  though  not  conclusive  proof,  of  all  the  facts  to  sus- 
tain a  suit  for  the  penalty.  That  is  to  say,  it  meant  that  he  should 
certify,  that  the  seaman  was  a  seaman  of  the  United  States,  was  desti- 
tute, that  he  requested  the  master  of  an  American  ship,  bound  to  the 
United  States,  to  take  him  on  board  and  transport  him  to  a  port  of 
the  United  States,  for  the  statute  compensation,  with  a  proviso  that  he 
should  not  be  compelled  to  take  more  than  two  seamen  for  every 
one  hundred  tons  burthen  of  the  ship,  and  that  he  refused  so  to  do. 
"Such  refusal,"  and  no  other,  would  constitute  an  offence  within  the 
statute;  and  such  refusal  and  no  other  is  to  be  certified.  Now,  the 
present  certificate  contains  the  allegations  of  these  necessary  facts; 
and  none  other ;  and,  therefore,  it  seems  to  me,  that  it  was  properly  ad- 
missible, in  the  whole,  according  to  the  ruling  of  the  district  judge. 

MILLER  V.  VAN  LOBEN  SELLS,  (1885,  U.  S.— Paraguay) 

66  Cal.  341;  5  Pac.  512. 

McKee,  Supreme  Court  of  California. 

(Syllabus)  The  privilege  of  a  consul  to  exemption  from  liability  to  suit  in 
the  state  courts  is  not  a  personal  privilege  which  may  be  waived,  and  his  priv- 
ilege is  not,  therefore,  waived  by  a  failure  to  plead  such  exemption,  in  a  suit 
against  him  in  a  state  court,  nor  by  reason  of  failure  to  set  up  the  same  until 
after  judgment  rendered  against  him. 

MOORE  V.  MILLER,  (1892,  U.  S.— Canada) 

147  Pa.  378;  23  Atl.  601;  5  Moore  110. 

Per  Curiam,  Supreme  Court  of  Pennsylvania. 

[Held,  that  the  acknowledgment  of  a  married  woman  before  a 
United  States  commercial  agent  in  Canada,  conforms  to  statutes  and 
acts  of  state  legislature  and  is  sufficient. — Ed.] 

MORRIS  V.  CORNELL,  (1843,  U.  S.) 
1  Sprague  62,  Fed.  Cases  9,829. 
Sprague,  District  Court. 

(65)  (Extract)  The  next  allegation  against  the  respondent  is,  that 

283 


CONSULAR  CASES 

he  prevented  the  libellant  at  different  ports,  from  laying  his  com- 
plaints before  the  American  consul.  This  right  is  secured  to  every 
seaman  by  the  statute  of  1840,  ch.  23,  and  if  the  consul  be  an  upright 
and  independent  officer,  it  may  be  of  immeasurable  value  to  the  op- 
pressed and  friendless  mariner  in  distant  regions.  It  may  be  called 
the  habeas  corpus  of  the  seaman,  and  the  court  will  carefully  and  vig- 
orously guard  its  inviolability. 

MOSBY  V.  UNITED  STATES,  (1888,  U.  S.) 

24  Ct.  CI.  1. 

JVeldon,  Court  of  Claims. 

[Official  fees — appealed  see  U.  S.  v.  Mosby. — Ed.] 

MOTHERWELL  v.  UNITED  STATES,  (1901,  U.  S.— Russia) 

107  Fed.  R€p.  437. 
Dallas,  Circuit  Court. 

[Affirms  decision  in  U.  S.  v.  Motherwell.  Very  able  dissenting 
opinion  of  District  Judge  Bradford  to  the  effect  that  the  Russian  in 
question  should  be  considered  a  deserter. — Ed.] 

MOTT  V.  SMITH,  (1860,  U.  S.) 

16  Cal.  552. 

Field,  Supreme  Court  of  California. 

[Certificates  of  acknowledgment  if  purported  to  be  by  one  au- 
thorized are  prima  facie  evidence  of  execution  of  deed ;  so  also  prima 
facie  evidence  of  the  official  character  of  persons  giving  them.  No 
proof  alixinde  necessary  of  signature  etc. 

General  designation  in  statute, — "any  consul"  embraces  consuls 
of  every  grade. — Ed.] 

NECK,  THE.  fl905,  U.  S.— Germany) 

138  Fed  Hop.  144. 

Hanford,  District  Court. 

[As  American  seaman  had  been  enrolled  in  violation  of  U.  S. 
laws  he  was  not  member  of  crew  and  treaty  does  not  give  German 
con.sul  jurisdiction. — Ed.] 

NEW  CITY.  THE,  ri89],  U.  S.) 

47  Fed.  Rep.  328. 

Hanford,  District  Court. 

[Held,  that  where  the  British  vice-consul,  on  the  facts  shown  by 

284 


CONSULAR  CASES 

the  shipping  articles  and  on  the  ex  parte  statements  of  libellants,  had 
refused  to  order  payment  to  them  of  wages,  the  district  court  of  the 
U.  S.  ^\^ll  dismiss  the  libel — Waitshoair  v.  The  Craigend,  42  Fed. 
Rep.  175  distinguished — there  was  no  protest  of  consul  in  that  case — 
U.  S.  courts  exercise  jurisdiction  proceeding  upon  the  idea  of  comity 
and  to  prevent  a  failure  of  justice  but  will  not  interfere  when  deci- 
sion has  been  given  by  an  authorized  agent  of  the  government  of  the 
country  to  which  the  vessel  belongs. — Ed.] 

NEWMAN,  EX  PARTE,  (1871,  U.  S.— Germany) 
14  WaU.   152. 

Clifford,  Supreme  Court. 

[German  consuls  are  by  treaty  given  right  to  decide  all  dis- 
putes between  seamen  and  master  and  this  excludes  admiralty  courts' 
jurisdiction  in  case  of  a  suit  *'in  rem*'  for  wages. — Ed.] 

NIBOYET  V.  NIBOYET,  (1878,  Great  Britain) 

L.  E.,  3  P.  D.  52;  39  L.  T.  486. 

Sir  Robert  Phillimore,  Probate  Division,  High  Court  of  Justice. 

(59)  (Extract)  It  is  to  be  observed,  however,  that  in  the  present 
case  the  husband  is  not  only  a  foreign  subject,  but  is  employed  in  this 
country  in  the  discharge  of  duties  belonging  to  a  foreign  public  of- 
fice which  incapacitates  him  from  acquiring  a  domicile  in  this  country. 

[This  case  was  reversed  in  4  L.  R.  P.  D.  1,  but  the  court  did  not 
declare  that  a  domicile  was  acquired,  but  only  that  the  court  had  jur- 
isdiction for  other  reasons. — Ed.] 

NIBOYET  V.  NIBOYET,  See  Niboyet  v.  Niboyet. 
4  L.  R.  P.  D.  1. 

NINA,  THE,  (1867,  Great  Britain— Portugal) 

2  L.  R.  P.  C.  38. 

Lord  Romilly,  Privy  Council. 

(44)  LORD  ROMILLY:  In  this  case  their  lordships,  to  avoid 
delay,  intimated  on  the  20th  of  December  last  the  nature  of  the  report 
and  recommendation  they  had  agreed  humbly  to  submit  to  her  maj- 
esty; and  her  majesty  was  pleased,  by  her  order  in  council  of  the 
same  date,  to  approve  of  that  report,  and  to  direct  that  the  same  be 
carried  into  execution.  Their  lordships  will  now  proceed  to  state  more 
fully  the  reasons  of  that  decision,  which  could  not  be  stated  at  their 
last  {Sitting  before  the  adjournment  of  the  committee. 

285 


CONSULAR  CASES 

This  is  an  appeal  from  the  court  of  admiralty,  which  dismissed 
the  defendant  from  this  cause  and  all  further  observance  of  justice 
therein,  and  condemned  the  plaintiff  in  the  costs  and  damages  con- 
(45)  sequent  on  the  arrest  of  the  vessel  Nina,  and  also  condemned  him 
in  the  costs  of  the  cause,  and  decreed  the  vessel  to  be  released. 

The  vessel  is  a  Portuguese  vessel ;  the  appellant  is  a  British  sub- 
ject. 

In  April,  1867,  the  plaintiff  commenced  his  services  on  board  the 
Nina,  then  lying  at  Havana.  He  signed  the  articles  in  the  common 
form  which  was  supplied  to  him,  a  certified  copy  of  which  is  in  evi- 
dence. On  arrival  at  Greenock,  he  alleges  that  he  was,  by  D  'Almeida, 
the  nominal  captain,  turned  out  of  the  vessel  without  payment  of  what 
was  due  to  him  for  wages  and  disbursements  on  account  of  the  ship. 
Upon  which  he  arrested  her.  but  not  prosecuting  the  case  with  suf- 
ficient diligence  in  Scotland,  the  suit  was  dismissed  and  the  ship  re- 
leased. The  Nina  then  came  to  Cardiff,  where  the  appellant  again 
arrested  the  ship,  and  instituted  this  suit  in  the  admiralty  court  for 
wages  and  disbursements. 

In  accordance  with  the  10th  of  the  rules  of  the  admiralty  court, 
published  in  1859,  notice  of  the  suit  was  given  to  the  Portuguese  con- 
sul residing  in  this  country ;  whereupon  the  consul  sent  in  a  protest, 
which,  as  far  as  is  material,  is  as  follows: 

"I  have  inspected  the  certificate  of  the  matricula,  or  roll,  under 
which  the  Nina  was  sailing  when  she  arrived  at  Greenock  in  the 
month  of  June,  1867 ;  and  I  say  that  such  matricula,  or  roll,  purports 
to  have  been  duly  executed,  as  required  by  Portuguese  law,  before 
Fernando  de  Gaver  e  Tiscar,  the  consul-general  of  his  most  faithful 
majesty  the  king  of  Portugal  at  Havana. 

"By  the  law  of  Portugal,  the  masters  of  all  Portuguese  vessels 
are  required,  before  taking  any  officer  or  seaman  to  sea  in  a  Portu- 
guese vessel,  to  enter  into  a  matricula,  or  roll,  setting  forth  the 
voyage  upon  which  the  ship  is  about  to  sail,  and  that  the  officers  and 
seamen  about  to  proceed  in  her  have  agreed  to  serve  for  that  voyage; 
and  such  matricula,  or  roll,  is  by  Portuguese  law  the  only  mode  in 
which  a  binding  engagement  can  be  entered  into  between  the  master 
of  a  Portuguese  ship  and  his  officers  and  seamen ;  and  the  matricula, 
or  roll,  when  entered  is  signed  by  the  master,  officers,  and  seamen. 

"The  plaintiff  in  this  action,  Charles  La  Blache,  has,  by  the  said 
matricula,  or  roll,  submitted  himself  to  the  provisions  of  the  (46) 
codigo  commercial  of  Portugal,  by  which  the  said  Charles  La  Blache 
is  restricted  from  taking  any  proceedings  against  the  Nina  or  her 
master,  and  is  required  to  submit  any  dispute  or  disputes  that  might 

286 


CONSULAR  CASES 

be  existing  between  them  either  to  the  Portuguese  vTce-consul  at  Glas- 
gow or  to  myself. 

"The  said  Charles  La  Blache  has  not,  as  I  am  informed  and  be- 
lieve, submitted,  or  attempted  to  submit,  any  dispute  or  disputes  ex- 
isting between  him  and  the  master  of  the  Nina  to  the  Portuguese  vice- 
consul  at  Glasgow;  and  the  said  Charles  La  Blache  has  not  sub- 
mitted, or  attempted  to  submit,  any  such  dispute  to  me,  which  I 
would  have  readily  entertained  had  the  said  Charles  La  Blache  so 
done. 

"The  said  Charles  La  Blache  being  subject  to  the  provisions  of 
the  codigo  commercial,  and  not  havmg  taken  the  measures  adopted 
thereby  to  settle  his  dispute  with  the  master  of  the  Nina,  I  respectfully 
submit  that  it  is  not  within  the  jurisdiction  of  this  honourable  court  to 
entertain  the  claim  of  the  said  Charles  La  Blache ;  and,  as  the  commer- 
cial representative  of  his  majesty  the  king  of  Portugal,  I  consider 
it  to  be  my  duty  to  respectfully  and  formally  protest  against  the  ex- 
ercise of  the  jurisdiction  of  this  honourable  court  in  or  about  the 
dispute  existing  between  the  said  Charles  La  Blache  and  the  master 
of  the  Portuguese  ship  Nina. 

"F.  I.  Van  Zellab.'* 

In  this  state  of  things  several  questions  arise: 

First;  whether  the  court  of  admiralty  has  any  jurisdiction  at 
all  in  the  case  of  a  claim  for  wages  by  seamen  for  service  on  board  of 
a  foreign  vessel. 

Second ;  if  it  has  such  jurisdiction,  whether,  before  exercising  it, 
the  court  is  bound  to  send  notice  of  the  case  to  the  consul  of  the  state 
to  which  the  vessel  belongs. 

Third ;  if  the  foreign  consul  intervenes  and  protests,  whether  such 
protest  operates  ipso  facto  as  an  absolute  bar  to  the  prosecution  of  the 
suit,  or  whether  the  judge  is  to  take  into  consideration  the  grounds 
and  reasons  advanced  by  the  consul,  and  to  determine  according  to 
his  discretion  whether,  having  regard  to  those  grounds  and  reasons, 
it  is  fit  and  proper  that  the  suit  should  proceed  or  be  stayed. 

(47)  Fourth;  whether  the  grounds  and  reasons  put  forward  in 
the  protest  of  the  Portuguese  consul  in  the  present  case  are  sufficient 
to  satisfy  the  court  that  the  suit  ought  to  be  stayed. 

On  the  first  question,  no  doubt  whatever  is  entertained  by  their 
lordships.  From  the  time  of  Lord  Stowell  down  to  the  present,  the 
court  of  admiralty  has  always  asserted  and  exercised  this  jurisdiction. 
And  if  there  remained  any  doubt  on  the  subject,  the  10th  section  of 
the  act,  24  Vict.  c.  10,  expressly  gives  jurisdiction  to  the  court  of  ad- 
miralty in  the  case  of  any  ship,  which,  as  the  context,  and  the  rest  of 
the  act  plainly  show,  means  the  ship  of  any  nation. 

287 


CONSULAR  CASES 

Nor  have  their  lordships  any  more  doubt  upon  the  second  ques- 
tion. It  has  been  argued  at  the  bar  that  the  10th  section  of  the  act, 
24  Vict.  c.  10,  before  referred  to,  has  the  effect  of  abolishing  the 
practice  enjoined  by  the  10th  of  the  rules  of  the  admiralty  court  of 
1859,  before  referred  to,  of  sending  notice  to  the  consul  of  the  nation 
to  which  the  foreign  ship  belongs.  To  this  argument  their  lordships 
cannot  accede.  If  it  had  been  intended  by  the  legislature  to  abolish 
the  practice,  that  10th  rule,  which  it  is  to  be  observed  has  the  force  of 
statute,  would  have  been  expressly  referred  to  by  the  act,  and  over- 
ruled. This  is  not  done.  The  10th  section  of  the  act  is  perfectly  con- 
sistent with  the  rule.  The  only  object  of  that  section  w^as  to  extend 
the  jurisdiction  which  the  court  already  had  in  the  ordinary  case  of 
wages,  to  the  cases  of  wages  under  special  contract,  and  of  disburse- 
ments on  account  of  the  ship. 

With  respect  to  the  third  question,  their  lordships  are  of  opinion 
that  the  protest  of  the  foreign  consul  does  not,  ipso  facto,  operate  as 
a  bar  to  the  prosecution  of  the  suit.  The  foreign  consill  has  not  the 
power  to  put  a  veto  on  the  exercise  of  its  jurisdiction  by  the  court  of 
admiralty.  It  is  well  observed  by  Dr.  Lushington,  in  the  case  of  The 
Golubchick,  that  the  jurisdiction  of  the  court  of  admiralty  cannot 
depend  upon  the  will  of  a  foreign  consul ;  that  as  he  cannot  confer  the 
jurisdiction,  so  he  cannot  take  it  away.  If  the  consul  protests,  but 
advances  no  reason,  the  suit  will  proceed.  If  he  advances  reasons 
for  staying  the  suit,  the  plaintiff  must  be  at  liberty  to  dispute  the  facts 
and  answer  the  reasons  put  forward  by  the  consul;  and  then  the 
judge  (48)  of  the  court  of  admiralty  is  to  exercise  his  discretion,  and 
determine  whether,  having  regard  to  those  reasons,  with  the  answers 
thereto,  it  is  fit  and  proper  that  the  suit  should  proceed  or  be  stayed. 
By  descretion  is  meant,  to  use  the  words  of  Lord  Eldon,  in  White  v. 
Damon,'  not  an  arbitrary,  capricious  discretion,  but  one  that  is 
regulated  upon  grounds  that  will  make  it  judicial.  That  the  exercise 
of  this  jurisdiction  by  the  court  of  admiralty  lies  in  the  discretion  of 
the  f'ourt  in  the  sense  before  stated,  is  established  by  a  long  line  of 
authorities,  from  the  time  of  Lord  Stowell  down  to  the  present.  They 
are  all  one  way.  and  they  are,  in  the  opinion  of  their  lordships,  conclu- 
sive on  this  subject.  And  their  lordships  concur  in  the  decision  of  the 
late  learned  judge  of  the  court  of  admiralty  in  the  case  of  The  Octavie, 
that  this  discretion  is  not  taken  away  by  the  10th  section  of  the  ad- 
miralty jurisdiction  act,  already  referred  to. 

Upon  the  first  three  questions,  then,  their  lordships  are  of  opin- 
ion that  in  the  case  of  a  suit  for  wages  by  seamen  for  service  on 

» 7  Ve«.  35. 

288 


CONSULAR  CASES 

board  of  a  foreign  vessel,  the  court  of  admiralty  has  jurisdiction,  but 
that  it  will  not  exercise  it  without  first  giving  notice  to  the  consul  of 
the  nation  to  which  the  foreign  vessel  belongs ;  and  that  if  the  foreign 
consul,  by  protest,  objects  to  the  prosecution  of  the  suit,  the  court  will 
determine  according  to  its  discretion,  judicially  exercised,  whether, 
having  regard  to  the  reasons  advanced  by  the  consul,  and  the  answers 
to  them  offered  on  the  part  of  the  plaintiff,  it  is  fit  and  proper  that  the 
suit  should  proceed  or  be  stayed. 

Their  lordships  are  further  of  opinion,  that  it  makes  no  differ- 
ence that  the  plaintiff  is  a  British  subject.  It  is  the  nationality  of  the 
vessel,  and  not  the  nationality  of  the  individual  seaman  suing  for  his 
wages,  that  must  regulate  the  course  of  procedure. 

With  respect  to  the  fourth  question  which  is,  whether  the  facts 
and  reasons  adduced  by  the  foreign  consul  are  established,  and,  if  so, 
whether  they  are  sufficient  to  induce  the  court  to  stay  the  further 
prosecution  of  this  suit;  their  lordships  think  that  they  are  so.  The 
plaintiff  does  not  deny  that  the  roll  or  matricula  which  he  signed  was 
in  the  usual  form,  and  that  it  contained  the  usual  printed  conditions 
which  now  appear  on  the  certified  copy  (49)  produced  in  court.  By 
these  he  agrees  to  be  bound  by  the  Portuguese  law;  the  consul  asserts 
the  law  to  be,  that  in  case  of  difference  between  the  seamen  and  the 
captain  the  case  shall  be  determined  by  the  Portuguese  consul  residing 
in  the  country  where  the  ship  is  arrested.  The  consequence  is,  that  he 
is  the  judge  to  determine  the  contest  between  the  plaintiff  and  de- 
fendant, and  he  is  ready  and  willing  to  hear  and  dispose  of  the  case. 
No  evidence  is  given  to  contest  the  accuracy  of  this  statement,  and  this 
being  so,  their  lordships  are  of  opinion,  that  the  plaintiff  has  agreed 
to  refer  such  matters  to  the  decision  of  the  Portuguese  consul  resident 
here,  and  that  this  constitutes  a  sufficient  ground  to  induce  the  learn- 
ed judge  of  the  court  of  admiralty  to  come  to  the  conclusion  that, 
in  the  proper  exercise  of  his  discretion,  this  suit  should  not  be  pro- 
ceeded with. 

It  must  be  a  very  strong  case  in  which  their  lordships  would  be 
disposed  to  overrule  the  discretion  of  any  judge  which  had  been  ho7ia 
fide  exercised  on  judicial  principles,  and  they  are  of  opinion  that 
the  decision  of  the  learned  judge  is  correct  in  dismissing  the  cause 
and  releasing  the  vessel ;  but  the  decree  in  the  court  below  proceeds  to 
award  costs  and  damages  to  the  defendant  against  the  plaintiff.  Their 
lordships  are  unable  to  discover  on  what  principle  this  can  be  rested. 
The  question  in  the  court  below,  and  now  before  their  lordships,  is 
not  whether  the  plaintiff  was  right  in  his  suit;  for  the  suit  has  not 
properly  come  to  any  hearing  on  the  merits.  The  evidence  necessary 
for  arriving  at  a  decision  on  the  merits  has  not  been  produced.    The 

289 


CONSULAR  CASES 

only  question  properly  before  the  court  below  was,  whether  the  suit 
instituted  by  the  plaintiff  should  be  allowed  to  proceed  or  not;  io 
other  words,  whether  the  facts  and  reasons  set  forth  by  the  Portu- 
guese consul  were  sufficient  to  induce  the  court  to  refuse  to  allow  the 
suit  to  proceed,  and  these  facts  and  reasons  were  the  only  matters 
which  could  be  properly  contested  in  the  court  below.  The  learned 
judge  arrived  at  the  conclusion,  as  their  lordships  think  correctly, 
that  the  suit  should  not  proceed ;  but  that  very  circumstance  made  it 
impossible  for  the  court  to  come  to  a  safe  and  satisfactory  conclusion 
as  to  what  would  have  been  the  result  if  the  suit  had  been  allowed  to 
proceed,  the  proofs  on  both  sides  given  in  the  usual  manner,  and  the 
cause  heard  on  the  merits. 

(50)  Their  lordships,  therefore,  are  unable  to  concur  with 
the  learned  judge  of  the  court  of  admiralty  in  that  portion 
of  his  decree  which  fixes  the  plaintiff  with  the  payment  of 
costs  and  damages,  and  have,  therefore,  humbly  reported  to  her 
majesty  that  the  decree  of  the  court  of  admiralty  be  varied  by  strik- 
ing out  of  it  so  much  as  relates  to  such  costs  and  damages.  The 
decree  runs  thus:  Her  majesty  dismisses  the  defendant  from  this 
cause  and  all  further  observance  of  justice  therein,  and  decrees  the 
said  vessel  to  be  released ;  but  their  lordships  do  not  think  fit  to  make 
any  order  as  to  costs,  either  in  the  court  below,  or  in  the  appeal  to  her 
majesty  in  council. 

Solicitors  for  the  appellant :  Cotterill  &  Sons. 

Proctors  for  the  respondent :  Clarkson,  Son,  &  Cooper. 

NORBERG  v.  HILLGREU,  (1846,  U.  S.— Sweden) 
5  New  York  Legal  Observer  177. 
Jones,  New  York  Supreme  Court. 

Where  an  action  was  brought  in  the  Marine  Court  for  seaman's  wages 
earned  on  board  of  a  Swedish  vessel,  and  judgment  was  obtained  thereon: — It 
was  held,  (reversing  the  judgment  of  the  court  below)  that  the  case  came  within 
the  provisions  of  the  treaty  between  this  country  and  the  government  of  Sweden 
and  Norway,  and  that  the  claim  was,  therefore,  only  cognizable  before  the  con- 
Bul  of  the  country  to  which  the  vessel  belonged. 

Error  from  the  marine  court.    The  circumstances  of  this  case  suf- 
ficiently api)ear  in  the  opinion  delivered  by  the  learned  chief  justice. 
F.  S.  Stallknecht,  for  the  plaintiff  in  error. 
A.  Nash,  for  the  defendant  in  error. 

JONES,  C.  J.  This  case  comes  before  us  on  certiorari  to  the  ma- 
rine court.  The  action  is  assumpsit  brought  by  Hillgreu,  plaintiff  in 
the  court  below,  for  seaman's  wages.     The  defense  that  was  inter- 

290 


CONSULAR  CASES 

posed,  and  the  only  defence  on  which  any  reliance  is  placed,  was 
that  these  wages  were  earned  on  board  of  a  Swedish  vessel,  of  which 
the  defendant  below  was  captain,  and  plaintiff  one  of  the  crew,  and 
that  by  a  provision  in  the  treaty  between  this  country  and  the  gov* 
ernment  of  Sweden  and  Norway,  the  courts  of  this  country  have  no 
jurisdiction  in  such  cases;  but  that  such  claims  are  cognizable  only 
before  the  consul  of  the  country  to  which  the  vessel  belongs.  The 
clause  of  the  treaty  is  as  follows: 

(178)  "The  consuls,  vice-consuls,  or  commercial  agents,  or  the 
persons  duly  authorized  to  supply  their  places,  shall  have  the  right 
as  such,  to  sit  as  judges  and  arbitrators,  in  such  differences  as  may 
arise  between  the  captains  and  crews  of  the  vessels,  belonging  to  the 
nation  whose  interests  are  committed  to  their  charge,  without  the  in- 
terference of  the  local  authorities,  unless  the  conduct  of  the  crew, 
or  of  the  captain,  should  disturb  the  orders  or  tranquility  of  the 
country;  or  the  said  consuls,  vice-consuls,  or  commercial  agents, 
should  require  their  assistance  to  cause  their  decisions  to  be  carried 
into  effect  or  supported.  It  is,  however,  understood,  that  this  species 
of  judgment,  or  arbitration,  shall  not  deprive  the  contending  parties 
of  the  right  they  have  to  resort,  on  their  return,  to  the  judicial  author- 
ity of  their  country." 

Notwithstanding  this  provision,  the  marine  court  gave  judgment 
of  $100  and  costs  for  the  seaman,  and  the  question  we  are  called  upon 
to  review  is,  whether  this  case  does  or  does  not  come  within  the  treaty. 

We  are  of  opinion  that  it  does  come  within  the  treaty;  it  is  of 
great  importance  to  American  masters  of  vessels  in  Sweden,  that  they 
should  have  the  protection  of  this  clause  to  prevent  the  interference  ot 
the  courts  of  Sweden  with  their  crews,  and  under  this  clause  they  have 
a  right  to  claim  that  no  one  but  the  American  consul  there  shall  have 
any  right  to  adjudicate  such  differences  as  may  arise  between  them. 
Now,  if  our  vessels  in  Sweden  have  this  right  there,  of  course  we 
ought  as  fully  to  extend  the  same  protection  to  Swedish  captains  here. 
In  this  case,  the  facts  clearly  appear  that  the  seaman  is  a  Swede  by 
birth,  and  he  is  alleged  to  have  deserted  on  a  former  voyage  of  this 
vessel  in  this  port.  When  the  vessel  again  came  here,  he  voluntarily 
shipped  again,  and  on  her  last  return  here,  again  left  her  without  per- 
mission, and  then  instituted  this  suit  for  his  wages,  since  his  last  ship- 
ment, the  consul,  at  the  same  time,  having  caused  proceedings  to  be 
instituted  to  have  him  arrested  as  a  deserter.  No  case  certainly  could 
come  more  directly  and  fully  within  the  treaty.  It  is  contended  by 
the  counsel  for  the  seaman,  that  the  fact  of  his  having  the  last  time 
shipped  in  New  York,  takes  the  case  out  of  the  treaty,  and  that  it  ap- 
plies only  to  the  crew  who  originally  shipped  in  Sweden.    Such  a  con- 

291 


CONSULAR  CASES 

stniction  of  it  would  be  entirely  too  narrow;  the  custom  of  shipping 
sailors  in  foreign  ports  by  vessels  of  all  nations  is  general,  and  nec- 
essarily must  exist ;  and  persons  who  thus  ship  voluntarily,  bring  them- 
selves under  the  government  and  jurisdiction  of  the  countrj^  on  board 
whose  vessel  they  ship.  A  seaman  has  no  right  to  appeal  to  the  courts 
here,  as  long  as  he  belong  to  a  Swedish  vessel. 

The  attention  of  the  court  is  directed  to  a  part  of  the  justice's 
return,  imputing  fraud  to  the  official  acts  of  the  consul  in  the  man- 
ner of  shipping  the  sailor.  We  see  no  grounds  for  imputing  either 
fraud  or  improper  motives  to  the  consul's  acts;  all  he  did,  appears 
to  us  clearly  to  be  what  his  official  duty  required,  and  no  more.  And 
even  if  a  foreign  official  should  at  any  time  fail  in  his  duty,  national 
courtesy  should  prompt  the  courts  here,  not  to  make  them  the  subject 
of  unnecessary  comment. 

Judgment  reversed. 

OCTAVIE,  THE,  (1863,  Great  Britain— Belgium) 

33  L.  J.  P.  M.  A.  N.  S.  115. 

Dr.  Lushington,  High  Court  of  Admiralty. 

(Syllabus)  The  protest  by  a  foreign  consul  against  the  prosecution  of  a  guit 
for  wages  against  a  ship  of  his  country  does  not  deprive  the  court  of  its  jur- 
iBdictioD,  but  makes  the  exercise  of  that  jurisdiction  discretionary. 

ORNELAS  v.  RTJIZ,  (1895,  U.  S.) 

161  U.  S.  502. 

Fuller,  Supreme  Court. 

(Extract)  The  republic  of  Mexico  applied  for  the  extradition  of 
these  petitioners  by  complaints  made  under  oath  by  its  consul  at  San 
Antonio,  Bexar  county,  Texas,  under  section  5270  of  the  revised  stat- 
utes. The  official  character  of  this  officer  must  be  taken  as  sufficient 
evidence  of  his  authority,  and  as  the  government  he  represented  was 
the  real  party  interested  in  resisting  the  discharge,  the  appeal  was 
properly  prosecuted  by  him  on  its  behalf.  Wildenhus's  case,  120  U. 
S.  1.  As  the  construction  of  the  treaty  was  drawn  in  question  the  ap- 
peal was  taken  directly  to  this  court,  and  the  district  court  rightly 
required  petitioners,  under  rule  34,  to  enter  into  recognizance  for 
their  appearance  to  answer  its  judgment. 

OTTE  HUNDRED  AND  NINETY-FOUR  SHAWLS,  (1848,  U.  S.— Great 

Britain; 
1  Abb.  Adm.  317;  Fed.  Cases  10,521. 
Betts,  District  Court. 

[Consul  intervened  to  represent  unlcnown  owTiers. 

Court  decreed  that  in  respect  to  the  British  consul,  who  inter- 

292 


CONSULAR  CASES 

vened  officially  in  protection  of  the  rights  of  absent  and  unknown 
owners,  his  taxable  costs  were  to  be  paid  before  the  order  for  de- 
livering up  the  property  was  executed, — Ed.] 

(Extract)  As  the  libellants  may  not  reclaim  the  property  at- 
tached in  their  behalf,  the  decree  will  make  provision  enabling  the 
claimants  who  have  intervened  in  their  own  rights  and  the  British 
consul  in  behalf  of  unknown  owners,  to  take  the  goods  out  of  court 
and  ship  them  to  their  port  of  destination. 

ORE  v.  THE  ACHSAH,  (1849,  U.  S.) 
Fed.  Cases  10,586. 
Kane,  District  Court. 

[Suit  in  rem  for  wages  after  break  up  of  voyage. — Ed.] 

(Syllabus)  The  protest  of  a  foreign  consul  will  not  prevent  the  diatriet  court 
from  taking  jurisdiction  of  the  case. 

OSCANYAN  V.  ARMS  COMPANY,  (1880,  U.  S.) 

103  U.  S.  261. 

Field,  Supreme  Court. 

(272)  (Extract)  In  the  first  place,  the  plaintiff  was,  at  the  time, 
an  officer  of  the  Turkish  government.  As  its  consul-general  at  the 
port  of  New  York,  he  was  invested  with  important  functions,  and  en- 
titled to  many  privileges  by  the  law  of  nations.  It  is  not  necessary 
here  to  state  with  any  particularity  the  functions  and  privileges  at- 
tached to  the  consular  office.  These  will  be  foimd  in  any  of  the  ap- 
proved treatises  on  international  law. 

It  is  enough  to  observe  that  a  consul  is  an  officer  commissioned 
by  his  government  for  the  protection  of  its  interests  and  those  of  its 
citizens  or  subjects;  and  whilst  he  is  sometimes  allowed,  in  Chris- 
tian countries,  to  engage  in  commercial  pursuits,  he  is  so  far  its 
public  agent  and  commercial  representative  that  he  is  precluded  from 
undertaking  any  affairs  or  assuming  any  position  in  conflict  with  its 

interests  or  its  policy.    By  some  governments  he  is  invested in  the 

absence  of  a  minister  or  ambassador  to  represent  them — with  diplo- 
matic powers,  and,  as  between  their  citizens  or  subjects,  may  also 
exercise  judicial  functions.  By  all  governments  his  representative 
character  is  recognized,  and  for  that  reason  certain  exemptions  and 
privileges  are  granted  to  him.  In  the  constitution  of  the  United 
States,  consuls  are  classed  with  ministers  and  ambassadors  in  the 
ennumeration  of  parties  whose  cases  are  subject  to  the  original  juris*" 

293 


CONSULAE  CASES 

diction  of  the  supreme  court,  and  in  the  treaty  with  the  Ottoman  em- 
pire authority  is  given  to  it  to  appoint  consuls  in  the  United  States. 

[In  this  ease  Turkish  consul  general  sought  to  recover  a  stipulated 
percentage  for  using  his  influence  with  his  government  to  induce  it  to 
purchase  certain  goods. — Ed.] 

OTTERBOURG'S  CASE,  (1869,  U.  S.) 

5  Ct.  a.  430. 

Peck,  Court  of  Claims  of  United  States. 

[A  statutory  requirement,  as  to  a  prescribed  oath  preceding  entry 
upon  duties  of  consul  and  before  latter  shall  be  entitled  to  salary,  must 
be  complied  with  before  officer  duly  authorized  to  take  oaths.  Oath 
before  consul  of  an  other  state  not  valid. 

Act  of  18th  August,  1856,  consul  cannot  exercise  diplomatic 
functions  without  authorization  from  president. — Ed.] 

PARSONS  V.  HUNTER,  (1836,  U.  S.) 
2  Suinn.  419;  Fed.  Cases  10,778. 
Story,  Circuit  Court. 

[Case  against  shipmaster  for  not  depositing  ships'  papers  with 
consul — discussion  of  the  proceedure  to  be  followed  in  bringing  suit 
for  this  omission — contains  nothing  material  to  the  understanding  of 
the  consular  office. — Ed.] 

PATCH  V.  MARSHALL,  (1853,  U.  S.) 

1  Curt.  452;   Fed.  Cases  10,793. 

Curtis,  Circuit  Court. 

This  was  an  appeal  from  a  decree  of  the  district  court,  (453)  in  a 
cause  of  personal  damage.  The  case  is  stated  in  the  opinion  of  the 
court. 

CURTIS,  J.  The  district  court  having  made  a  decree  in  favor  of 
the  libf'llant.  and  awarded  to  him  damages,  in  the  sum  of  four  hundred 
dollars,  together  with  his  costs,  the  respondent  appealed  to  this  court, 
and  entered  his  appeal  at  the  present  term.  Some  days  afterwards, 
the  consul  of  her  Britannic  majesty  at  the  port  of  Boston,  filed  a  pro- 
test against  the  jurisdiction  of  this  court,  assigning  for  causes,  in  sub- 
stance,— 

1.  That  the  brig  TTope,  on  board  which  the  libellant  and  respon- 
dent sailed,  was  a  British  vessel;  and  the  respondent,  her  commander, 
a  British  subject. 

294 


CONSULAR  CASES 

2.  That  an  investigation  of  some  of  the  alleged  causes  of  damage 
must  call  in  question  official  acts  and  conduct  of  a  British  functionary 
in  regard  to  British  subjects,  for  which  he  is  responsible  only  to  his 
own  government. 

This  objection  to  the  jurisdiction  must  be  first  disposed  of.  The 
facts  upon  which  its  validity  depends  are,  that  the  brig  Hope  was  a 
registered  vessel  of  Great  Britain,  and  the  master  a  British  subject; 
that  the  voyage  in  question  was  made  for  account  of  merchants  dom- 
iciled in  Boston,  who  hired  the  master  on  wages,  and  provisioned  and 
manned  the  vessel;  but  whether  under  a  charter-party,  or  by  reason 
of  their  ownership  of  the  brig,  does  not  appear. 

The  voyage,  described  in  the  shipping  articles,  signed  by  the 
libellant,  is  from  the  port  of  Boston  to  St.  Jago  de  Cuba,  and  back 
to  a  port  in  the  United  States.  The  voyage  actually  performed  was 
terminated  in  Boston,  in  July  last ;  and  the  crew,  including  the  libel- 
lant, were  then  and  there  discharged.  The  libellant  was  bom  in  the 
United  (454)  States,  and  is  described  in  the  articles  as  of  Baltimore, 
in  the  state  of  Maryland.  There  is  evidence  tending  to  show,  that  the 
libellant  was  not  aware  the  brig  was  not  a  vessel  of  the  United  States, 
until  after  she  sailed  from  Boston.  The  family  of  the  master  has, 
for  a  considerable  time,  resided  in  the  neighborhood  of  Boston ;  and  it 
did  not  appear  that  he  has  any  other  domicile. 

Upon  these  facts,  I  am  of  opinion  this  protest  must  be  over- 
ruled. 

It  is  not  easy  to  perceive  how  it  can  be  allowed,  without  impairing 
the  rights  of  the  respondent  himself.  It  must  be  remembered  that 
he  is  the  appellant.  The  protest  is,  therefore,  an  objection  against 
entertaining  his  appeal.  But  if  not  entertained,  what  is  to  be  done? 
If  the  appeal  should  be  dismissed,  upon  the  ground  that  this  court 
would  not  exercise  its  jurisdiction  in  the  case,  the  decree  of  the 
district  court  would  stand  unreversed;  and  upon  a  certificate  from 
this  court,  that  the  appeal  had  been  so  dismissed,  the  district  court 
might  find  itself  obliged  to  execute  its  decree;  because  the  decision 
would  not  be  that  the  district  court  had  not  jurisdiction,  or  under 
the  circumstances  did  not  properly  exercise  it,  no  objection  thereto 
being  there  made;  but  only,  that  after  a  protest  by  the  consul,  this 
court  would  not  entertain  the  appeal. 

If,  however,  this  difficulty  were  overcome,  I  should  not  see  suf- 
ficient ground  upon  which  I  could  decline  to  exercise  jurisdiction.  It 
is  evident  there  must  be  a  failure  of  justice,  if  I  were  to  do  so.  The 
claim  is  in  personam.  The  actual  domicile  of  the  master  is  here.  The 
voyage  was  ended  at  this  port.  The  libellant  is  a  native  of  the  United 
States,  and  here  has  his  home.     To  require  him  to  follow  this  master 

295 


CONSULAR  CASES 

over  the  world,  until  he  can  find  him  in  (455)  a  British  port,  would 
practically  deprive  him  of  all  remedy.  I  do  not  think  any  considera- 
tions of  public  convenience,  or  the  comity  extended  by  the  courts  of 
admiralty  of  one  country  to  those  of  another,  have  any  applicability 
to  such  a  case.  I  do  not  consider  it  necessary  to  review  the  decisions 
in  Engrland  and  this  country,  on  the  subject  of  the  exercise  of  the 
admiralty  jurisdiction  over  foreigners.  None  of  them  apply  to  a  case 
where  the  claim  is  for  a  personal  tort,  and  the  Hbellant  is  not  a  for- 
eigner, and  the  respondent,  though  an  alien,  is  domiciled  here,  and  the 
voyage  was  begun  and  terminated  in  the  United  States. 

It  is  true  this  court  should  not  call  in  question  a  British  consul, 
for  his  official  acts  respecting  the  crew  of  a  British  vessel  in  a  foreign 
port.  It  is  correctly  stated  in  the  protest,  that  he  is  responsible  solely 
to  his  own  government ;  or  if  to  individuals,  such  responsibility  grows 
out  of  the  mimicipal  laws  of  his  coimtry,  which  this  court  would  not 
undertake  to  administer.  But  it  does  not  follow  that  the  conduct 
of  the  master  of  such  a  vessel,  in  procuring  the  official  intervention  of 
the  consul,  upon  false  allegations,  to  the  injury  of  an  American  citi- 
zen by  imprisonment  in  a  foreign  jail,  is  not  to  be  here  investigated. 
That  depends  on  other  considerations,  and  is  not  distinguishable  from 
any  other  wrong  done  by  the  master,  of  which  this  court  should  take 
or  refuse  jurisdiction  according  to  the  national  character  and  domicile 
of  the  parties,  and  the  place  of  termination  of  the  voyage.  The  Court- 
ney, Edw.  239;  The  Calypso,  2  Hag.  209;  The  Salacia,  2  Hag.  262; 
The  Madonna,  1  Dods.  37 ;  The  Two  Friends,  1  Rob.  271 ;  The  Johann 
Friederich,  1  Wm.  Rob.  38;  The  Bee,  Ware's  R.  332;  The  Jerusalem, 
2  Gal.  R.  ]91. 

(456)     The  protest,  therefore,  must  be  overruled. 

The  court  then  examined  the  evidence,  and  affirmed  the  decree 
of  the  di.strict  court. 

"Wheelock,  for  the  appellant. 

Sa\\yer,  for  the  appellee. 

Ilillard,  in  support  of  the  protest. 

PATTERSON  v.  BARK  EUDORA,  (1903,  U.  S.— Great  Britain) 

190  U.  8.  169,  23  Sup.  Ct.  Rep.  821. 

Brewer,  Supreme  Court. 

On  a  certificate  from  the  United  States  circuit  court  of  appeals 
for  the  third  circuit  presenting  the  question  whether  the  provisions  oi 
the  statute  prohibiting  advance  payment  of  wages  to  seamen  were 
applicable  to  seamen  shipping  in  a  port  of  the  United  States  on  a 
foreign  vessel,  and  whether,  if  so  applicable,  the  statute  was  valid. 
Answered  in  the  affirmative. 

296 


CONSULAR  CASES 

Statement  by  Mr.  Justice  Brewer : 

On  December  21,  1898  (30  Stat,  at  L.  755,  763,  chap.  28,  U.  S. 
Comp.  Stat.  1901,  pp.  3071,  3080),  congress  passed  an  act  entitled 
"An  act  to  amend  the  laws  relating  to  American  seamen,  for  the 
protection  of  such  seamen,  and  to  promote  commerce."  The  ma- 
terial portion  thereof  is  found  in  §  24,  which  amends  §  10  of  chapter 
121  of  the  laws  of  1884,  so  as  to  read : 

"Sec.  10.  (a)  That  is  shall  be,  and  is  hereby,  made  unlawful 
in  any  case  to  pay  any  seaman  wages  in  advance  of  the  time  when  he 
has  actually  earned  the  same,  or  to  pay  such  advance  wages  to  any 
other  person.  Any  person  paying  such  advance  wages  shall  be 
deemed  guilty  of  a  misdemeanor,  and,  upon  conviction,  shall  be  pun- 
ished by  a  fine  not  less  than  four  times  the  amount  of  the  wages  so 
advanced,  and  may  also  be  imprisoned  for  a  period  not  exceeding 
six  months,  at  the  discretion  of  the  court.  The  payment  of  such 
advance  wages  shall  in  no  case,  excepting  as  herein  provided,  absolve 
the  vessel  or  the  master  or  owner  thereof  from  full  payment  of  wages 
after  the  same  shall  have  been  actually  earned,  and  shall  be  no  defense 
to  a  libel,  suit,  or  action  for  the  recovery  of  such  wages.  If  any  person 
shall  demand  or  receive,  either  directly  or  indirectly,  from  any  sea- 
man or  other  person  seeking  employment  as  a  seaman,  or  from  any 
person  on  his  behalf,  any  renumeration  whatever  for  providing  him 
with  employment,  he  shall,  for  every  such  offense,  be  liable  to  a 
penalty  of  not  more  than  one  hundred  dollars. ' ' 

"  (/)  That  this  section  shall  apply  as  well  to  foreign  vessels  as 
to  vessels  of  the  United  States;  and  any  master,  owner,  consignee,  or 
agent  of  any  foreign  vessel  who  has  violated  its  provisions  shall  be 
liable  to  the  same  penalty  that  the  master,  owner,  or  agent  of  a 
vessel  of  the  United  States  would  be  for  a  similar  violation ;  provided 
that  the  treaties  in  force  between  the  United  States  and  foreign  na- 
tions do  not  conflict." 

The  appellants  were  seamen  on  board  the  British  bark  Eudora, 
and  filed  this  libel  for  wages  in  the  district  court  of  the  United  States 
for  the  Eastern  District  of  Pennsylvania.  By  an  agreed  statement  of 
facts  it  appears  that  on  January  22,  3900,  they  shipped  on  board 
such  bark  to  serve  as  seamen  for  and  during  a  voyage  from  Portland, 
Maine,  to  Rio  and  other  points,  not  to  exceed  twelve  months,  the 
final  port  of  discharge  to  be  in  the  United  States  or  Canada,  with  pay 
at  the  rate  of  one  shilling  for  forty-five  days  and  twenty  dollars  per 
month  thereafter.  At  the  time  of  shipment  twenty  dollars  was  paid 
on  accoimt  of  each  of  them,  and  with  their  consent,  to  the  shipping 
agent  through  whom  they  were  employed.  On  the  completion  of 
the  voyage,  they,  having  performed  their  duties  as  seamen,  demanded 

297 


CONSULAR  CASES 

wages  for  the  full  term  of  service,  ignoring  the  payment  made,  at  their 
instance,  to  the  shipping  agent.  The  advanced  payment  and  con- 
tract of  shipment  were  not  contrary  to,  or  prohibited  by,  the  laws 
of  Great  Britain.  It  was  contended,  however,  that  they  were  pro- 
hibited by  the  act  of  congress,  above  quoted,  and  that  such  act  was 
applicable.  The  district  court  entered  a  decree  dismissing  the  libel. 
110  Fed.  430.  On  appeal  to  the  circuit  courts  of  appeals  for  the  third 
circuit,  that  court  certified  the  following  questions  to  this  court : 

"First.  Is  the  act  of  congress  of  December  21,  1898,  properly 
applicable  to  the  contract  in  this  case  ? 

"Second.  Under  the  agreed  statement  of  facts  above  set  forth, 
upon  a  libel  filed  by  said  seamen,  after  the  completion  of  the  voyage, 
against  the  British  vessel,  to  recover  wages  which  were  not  due  to 
them  imder  the  terms  of  their  contract  or  under  the  law  of  Great 
Britain,  were  the  libellants  entitled  to  a  decree  against  the  vessel?" 

Mr.  Joseph  Hill  Brinton  for  appellants. 

Assistant  Attorney  General  Beck  for  the  United  States. 

Messrs.  Horace  L.  Che>Tiey  and  John  F.  Lewis  for  appellee. 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court : 

Applying  the  ordinary  rules  of  construction,  it  does  not  seem  to 
us  doubtful  that  the  act  of  congress,  if  within  its  power,  is  applicable 
in  this  case.  The  act  makes  it  unlawful  to  pay  any  seaman  wages  in 
advance,  makes  such  payment  a  misdemeanor,  and  in  terms  provides 
that  such  payment  shall  not  absolve  the  vessel  or  its  master  or  owner 
for  full  pa\Tnent  of  wages  after  the  same  shall  have  been  actually 
earned.  And  further,  it  declares  that  the  section  making  these  pro- 
visions shall  apply  as  well  to  foreign  vessels  as  to  vessels  of  the  United 
States,  provided  that  treaties  in  force  between  the  United  States  and 
foreign  nations  do  not  conflict.  It  is  true  that  the  title  of  the  act 
of  1898  is  "an  act  to  amend  the  laws  relating  to  American  seamen," 
but  it  has  been  held  that  the  title  is  no  part  of  a  statute,  and  can- 
not be  used  to  .set  at  naught  its  obvious  meaning.  The  extent  to  which 
it  can  be  used  is  thus  stated  by  Chief  Justice  Marshall  in  United 
States  V.  Fisher.  2  Cranch,  358,  386,  2  L.  ed.  304,  313: 

"Neither  party  contends  that  the  title  of  an  act  can  control 
plain  words  in  the  body  of  the  statute ;  and  neither  denies  that,  taken 
with  other  parts,  it  may  assist  in  removing  ambiguities.  Where  the 
intent  is  plain,  nothing  is  left  to  construction.  Where  the  mind  labors 
to  discover  the  design  of  the  legislature,  it  seizes  everything  from 
which  aid  can  be  derived ;  and,  in  such  case,  the  title  claims  a  degree 
of  notice  and  will  have  its  due  share  of  consideration." 

See  also  Yazoo  &  M.  Valley  R.  Co.  v.  Thomas,  132  U.  S.  174,  188 

298 


CONSULAR  CASES 

33  L.  ed.  302,  307,  10  Sup.  Ct.  Rep.  68 ;  United  States  v.  Oregon  & 
C.  R.  Co.  164  U.  S.  526,  541,  41  L.  ed.  541,  545,  17  Sup.  Ct.  Rep.  165; 
Price  V.  Forrest,  173  U.  S.  410,  427,  43  L.  ed.  749,  755,  19  Sup.  Ct. 
Rep.  434;  Endlich,  interpretation  of  statutes,  §  §  58,  59.  When,  as 
here,  the  statute  declares,  in  plain  words,  its  intent  in  reference  to  a 
prepayment  of  seamen's  wages,  and  follows  that  declaration  with  a 
further  statement  that  the  rule  thus  annoimced  shall  apply  to  foreign 
vessels  as  well  as  to  vessels  of  the  United  States,  it  would  do  violence 
to  language  to  say  that  it  was  not  applicable  to  a  foreign  vessel. 

But  the  main  contention  is  that  the  statute  is  beyond  the  power 
of  congress  to  enact,  especially  as  applicable  to  foreign  vessels.  It  is 
urged  that  it  invades  the  liberty  of  contract  which  is  guaranteed  by 
the  14th  amendment  to  the  federal  constitution,  and  reference  is 
made  to  Allgeyer  v.  Louisiana,  165  U.  S.  578,  589,  41  L.  ed.  832,  835, 
17  Sup.  Ct.  Rep.  427,  431,  in  which  we  said : 

*'The  liberty  mentioned  in  that  amendment  means  not  only  the 
right  of  the  citizen  to  be  free  from  the  mere  physical  restraint  of  his 
person,  as  by  incarceration,  but  the  term  is  deemed  to  embrace  the 
right  of  the  citizen  to  be  free  in  the  enjoyment  of  all  his  faculties; 
to  be  free  to  use  them  in  all  lawful  ways;  to  live  and  work  where  he 
will ;  to  earn  his  livelihood  by  any  lawful  calling ;  to  pursue  any  live- 
lihood or  avocation,  and  for  that  purpose  ,  to  enter  into  all  contracts 
which  may  be  proper,  necessary,  and  essential  to  his  carrying  out  to 
a  successful  conclusion  the  purposes  above  mentioned. ' ' 

Further,  that  even  if  the  contract  be  one  subject  to  restraint 
under  the  police  power,  that  power  is  vested  in  the  states,  and  not  in 
the  general  government,  and  any  restraint,  if  exercised  at  all,  can 
only  be  exercised  by  the  state  in  which  the  contract  is  entered  into; 
that  the  only  jurisdiction  possessed  by  congress  in  respect  to  such 
matters  is  by  virtue  of  its  power  to  regulate  commerce,  interstate  and 
foreign ;  that  the  regulation  of  commerce  does  not  carry  with  it  the 
power  of  controlling  contracts  of  employment  by  those  engaged  in 
such  service,  any  more  than  it  includes  the  power  to  regulate  con- 
tracts for  service  on  interstate  railroads,  or  for  the  manufacture  of 
goods  which  may  be  intended  for  interstate  or  foreign  commerce; 
and,  finally,  that  the  validity  of  a  contract  is  to  be  determined  by  the 
law  of  the  place  of  performance,  and  not  by  that  of  the  place  of  the 
contract;  that  the  contract  in  this  case  was  one  entered  into  in  the 
United  States,  to  be  performed  on  board  a  British  vessel,  which  is  im- 
doubtedly  British  territory,  and  therefore  its  validity  is  to  be  deter- 
mined by  British  law,  and  that,  as  conceded  in  the  question,  sustains 
its  validity. 

We  are  unable  to  yield  our  assent  to  this  contention.     That  there 

299 


CONSULAR  CASES 

is.  generally  speaking,  a  liberty  of  contract  which  is  protected  by  the 
14th  amendment,  may  be  conceded;  yet  such  liberty  does  not  extend 
to  all  contracts.  As  said  in  Frisbie  v.  United  States,  157  U.  S.  160, 
165,  39  L.  ed.  657,  659,  15  Sup.  Ct.  Rep.  586,  588: 

""While  it  may  be  conceded  that,  generally  speaking,  among  the 
inalienable  rights  of  the  citizen  is  that  of  the  liberty  of  contract,  yet 
such  liberty  is  not  absolute  and  universal.  It  is  within  the  undoubted 
power  of  government  to  restrain  some  individuals  from  all  con- 
tracts, as  well  as  all  individuals  from  some  contracts.  It  may  deny  to 
all  the  right  to  contract  for  the  purchase  or  sale  of  lottery  tickets; 
to  the  minor  the  right  to  assume  any  obligations,  except  for  the  neces- 
saries of  existence ;  to  the  common  carrier  the  power  to  make  any  con- 
tract releasing  himself  from  negligence,  and,  indeed,  may  restrain  all 
engaged  in  any  employment  from  any  contract  in  the  course  of  that 
employment  which  is  against  public  policy.  The  possession  of  this 
power  by  government  in  no  manner  conflicts  with  the  proposition  that, 
generally  speaking,  every  citizen  has  a  right  freely  to  contract  for  the 
price  of  his  labor,  services,  or  property. '  * 

And  that  the  contract  of  a  sailor  for  his  services  is  subject  to 
some  restrictions  was  settled  in  Robertson  v.  Baldwin,  165  U.  S.  275, 
41  L.  ed.  715,  17  Sup.  Ct.  Rep.  326,  in  which  §  §  4598  and  4599,  Rev. 
Stat.  (U.  S.  Comp.  Stat.  1901,  pp.  3115,  3116),  in  so  far  as  they  re- 
quire seamen  to  carry  out  the  contracts  contained  in  their  shipping 
articles,  were  held  not  to  be  in  conflict  with  the  13th  amendment,  and 
in  which  a  deprivation  of  personal  liberty  not  warranted  in  respect  to 
other  employees  was  sastained  as  to  sailors.  We  quote  the  following 
from  the  opinion  (p  282,  L.  ed.  p.  718,  Sup.  Ct.  Rep.  p.  329)  : 

"From  the  earliest  historical  period,  the  contract  of  the  sailor 
has  been  treated  as  an  exceptional  one,  and  involving,  to  a  certain  ex- 
tent, the  surrender  of  his  personal  liberty  during  the  life  of  the  con- 
tract. Indeed,  the  business  of  navigation  could  scarcely  be  carried 
on  without  some  guaranty,  beyond  the  ordinary  civil  remedies  upon 
contract  ,  that  the  sailor  will  not  desert  the  ship  at  a  critical  moment, 
or  leave  her  at  some  place  where  seamen  are  impossible  to  be  obtained 
— as  Molloy  forcibly  expresses  it — *to  rot  in  her  neglected  brine.' 
Such  desertion  might  involve  a  long  delay  of  the  vessel  while  the  mas- 
ter is  seeking  another  crew,  an  abandonment  of  the  voyage,  and,  in 
some  cases,  the  safety  of  the  ship  itself.  Hence,  the  laws  of  nearly 
all  maritime  nations  have  made  pro\'ision  for  .securing  the  personal  at- 
tendance of  the  crew  on  board,  and  for  their  criminal  punishment  for 
desertion  or  absence  without  leave  during  the  life  of  the  .shipping 
articles." 

If  the  necessities  of  the  public  justify  the  enforcement  of  a  sailor 'sj 

300 


CONSULAR  CASES 

contract  by  exceptional  means,  justice  requires  that  the  rights  of  the 
sailor  be  in  like  manner  protected.  The  story  of  the  wrongs  done  to 
Bailors  in  the  larger  ports,  not  merely  of  this  nation,  but  of  the 
world,  is  an  oft-told  tale,  and  many  have  been  the  efforts  to  protect 
them  against  such  wrongs.  One  of  the  most  common  means  of  doing 
these  wrongs  is  the  advancement  of  wages.  Bad  men  lure  them  into 
haunts  of  vice,  advance  a  little  money  to  continue  their  dissipation, 
and,  having  thus  acquired  a  partial  control,  and  by  liquor  dulled  their 
faculties,  place  them  on  board  the  vessel  just  ready  to  sail  and  most 
ready  to  return  the  advances.  When  once  on  shipboard,  and  the  ship 
at  sea,  the  sailor  is  powerless  and  no  relief  is  availing.  It  was  in 
order  to  stop  this  evil,  to  protect  the  sailor,  and  not  to  restrict  him  of 
his  liberty,  that  this  statute  was  passed.  And,  while  in  some  cases 
it  may  operate  harshly  ,  no  one  can  doubt  that  the  best  interests  of 
seamen  as  a  class  are  preserved  by  such  legislation. 

Neither  de  we  think  there  is  in  it  any  trespass  on  the  rights  of  the 
states.  No  question  is  before  us  as  to  the  applicability  of  the  statute 
to  contracts  of  sailors  for  services  wholly  within  the  state.  We  need 
not  determine  whether  one  who  contracts  to  serve  on  a  steamboat  be- 
tween New  York  and  Albany,  or  between  any  two  places  within  the 
limits  of  a  state,  can  avail  himself  of  the  privileges  of  this  legislation, 
for  the  services  contracted  for  in  this  case  were  to  be  performed  be- 
yond the  limits  of  any  single  state,  and  in  an  ocean  voyage.  Contracts 
with  sailors  for  their  services  are,  as  we  have  seen,  exceptional  in 
their  character,  and  may  be  subjected  to  special  restrictions  for  the 
purpose  of  securing  the  full  and  safe  carrying  on  of  commerce  on  the 
water.  Being  so  subject,  whenever  the  contract  is  for  employment 
in  commerce,  not  wholly  within  the  state,  legislation  enforcing  such 
restrictions  comes  within  the  domain  of  congress,  which  is  changed 
with  the  duty  of  protecting  foreign  and  interstate  commerce. 

Finally,  while  it  has  often  been  stated  that  the  law  of  the  place 
of  performance  determines  the  validity  of  a  contract  (London  Assur. 
Co.  V.  Companhia  de  Moagens  do  Barreiro,  167  U.  S.  149,  160,  42  L. 
ed.  113,  120,  17  Sup.  Ct.  Rep.  785),  yet  that  doctrine  does  not  con- 
trol this  case.  It  may  be  remarked,  in  passing,  that  is  does  not  ap- 
pear that  the  contract  of  shipment  or  the  advance  payment  were 
made  on  board  the  vessel  .  On  the  contrary,  the  stipulated  fact  is 
that  the  "seamen  were  engaged  in  the  presence  of  the  British  vice- 
consul  at  the  port  of  New  York."  The  wrongful  acts  were,  therefore, 
done  on  the  territory  and  within  the  jurisdiction  of  the  United  States. 
It  is  undoubtedly  true  that,  for  some  purposes,  a  foreign  ship  is  to 
be  treated  as  foreign  territory.  As  said  by  Mr.  Justice  Blackburn, 
in  Queen  v.  Anderson,  L.  R.  1  C.  C.  161,  "a  ship  which  bears  a  nation's 

301 


CONSULAR  CASES 

flag  is  to  be  treated  as  a  part  of  the  territory  of  that  nation.  A  ship 
is  a  kind  of  floating  island."  Yet  when  a  foreign  merchant  vessel 
comes  into  our  ports,  like  a  foreign  citizen  coming  into  our  territory, 
it  subjects  itself  to  the  jurisdiction  of  this  coimtry.  In  The  Ex- 
change V.  MTaddon,  7  Cranch.  116,  136,  146,  3  L.  ed.  287,  293,  297, 
this  court  held  that  a  public  armed  vessel  in  the  service  of  a  sovereign 
at  peace  with  the  United  States  is  not  within  the  ordinary  jurisdiction 
of  our  tribimals  while  within  a  port  of  the  United  States.  In  the 
opinion,  by  Chief  Justice  Marshall,  it  was  said  that  "the  jurisdiction 
of  the  nation  within  its  own  territory  is  necessarily  exclusive  and  ab- 
solute. It  is  susceptible  of  no  limitation  not  imposed  by  itself.  Any 
restriction  upon  it  deriving  validity  from  an  external  source  would 
imply  a  diminution  of  its  sovereignty  to  the  extent  of  the  restriction, 
and  an  investment  of  that  sovereignty  to  the  same  extent  in  that 
power  which  could  impose  such  restriction.  All  exceptions,  therefore, 
to  the  full  and  complete  power  of  a  nation  within  its  own  territories 
must  be  traced  up  to  the  consent  of  the  nation  itself.  They  can 
flow  from  no  other  legitimate  source.  This  consent  may  be  either  ex- 
press or  implied.  In  the  latter  case,  it  is  less  determinate,  exposed 
more  to  the  uncertainties  of  construction ;  but,  if  understood,  not 
less  obligatory,"  And  again,  after  holding  it  "to  be  a  principle  of 
public  law  that  national  ships  of  war,  entering  the  port  of  a  friendly 
power,  open  for  their  reception,  are  to  be  considered  as  exempted,  by 
the  consent  of  that  power,  from  its  jurisdiction,"  he  added:  "With- 
out doubt,  the  sovereign  of  the  place  is  capable  of  destroying  this  im- 
plication. He  may  claim  and  exercise  jurisdiction,  either  by  employ- 
ing force,  or  by  subjecting  such  vessels  to  the  ordinary  tribunals." 

Again,  in  Wildenhus's  case,  120  U.  S.  1,  sub  nom.  Mali  v.  Hud- 
son.County  Common  Jail  Keeper,  30  L.  ed.  565,  7  Sup.  Ct.  Rep.  385, 
in  which  the  jurisdiction  ©f  a  state  court  over  one  charged  with  mur- 
der, committed  on  board  a  foreign  merchant  vessel  in  a  harbor  of 
the  state,  was  sustained,  it  was  said  by  Mr.  Chief  Justice  Waite  (pp. 
11.  12,  L.  ed.  p.  567,  Sup.  Ct.  Rep.  p.  387)  : 

"It  is  part  of  the  law  of  civilized  nations  that  when  a  merchant 
vessel  of  one  coimtry  enters  the  ports  of  another  for  the  purposes  of 
trade,  it  subjects  itself  to  the  law  of  the  place  to  which  it  goes,  unless, 
by  treaty  or  otherwise,  the  two  countries  have  come  to  some  dif- 
ferent understanding  or  agreement.  *  *  •  From  experience,  how- 
ever, it  was  foimd  long  ago  that  it  would  be  beneficial  to  commerce 
if  the  local  government  would  abstain  from  interfering  with  the  inter- 
nal discipline  of  the  ship,  and  the  general  regulation  of  the  rights 
and  duties  of  the  officers  and  crew  towards  the  vessel  or  among  them- 
selves.    And  so,  by  comity,  it  came  to  be  generally  understood  among 

302 


CONSULAR  CASES 

civilized  nations  that  all  matters  of  discipline  and  all  things  done  on 
board  which  affected  only  the  vessel  or  those  belonging  to  her,  and 
did  not  involve  the  peace  or  dignity  of  the  country,  or  the  tranquil- 
ity of  the  port,  should  be  left  by  the  local  government  to  be  dealt 
with  by  the  authorities  of  the  nation  to  which  the  vessel  belonged, 
as  the  laws  of  that  nation  or  the  interests  of  its  commerce  should 
require.  But  if  crimes  are  committed  on  board  of  a  character  to 
disturb  the  peace  and  tranquility  of  the  country  to  which  the  ves- 
sel has  been  brought,  the  offenders  have  never,  by  comity  or  usage, 
been  entitled  to  any  exemption  from  the  operation  of  the  local  laws 
for  their  punishment,  if  the  local  tribunals  see  fit  to  assert  their 
authority. ' ' 

It  follows  from  these  decisions  that  it  is  within  the  power  of 
congress  to  prescribe  the  penal  provisions  of  §  10,  and  no  one  within 
the  jurisdiction  of  the  United  States  can  escape  liability  for  a  viola- 
tion of  those  provisions  on  the  plea  that  he  is  a  foreign  citizen  or  an 
officer  of  a  foreign  merchant  vessel.  It  also  follows  that  it  is  a  duty 
of  the  courts  of  the  United  States  to  give  full  force  and  effect  to  such 
provisions.  It  is  not  pretended  that  this  government  can  control  the 
action  of  foreign  tribunals.  In  any  case  presented  to  them,  they  will 
be  guided  by  their  own  views  of  the  law  and  its  scope  and  effect;  but 
the  courts  of  the  United  States  are  bound  to  accept  this  legislation, 
and  enforce  it  whenever  its  provisions  are  violated.  The  implied  con- 
sent of  this  government  to  leave  jurisdiction  over  the  internal  affairs 
of  foreign  merchant  vessels  in  our  harbors  to  the  nations  to  which 
those  vessels  belong  may  be  withdrawn.  Indeed,  the  implied  consent 
to  permit  them  to  enter  our  harbors  may  be  withdrawn,  and  if  thi^ 
implied  consent  may  be  wholly  withdrawn,  it  may  be  extended  upon 
such  terms  and  conditions  as  the  government  sees  fit  to  impose.  And 
this  legislation,  as  plainly  as  words  can  make  it,  imposes  these  con- 
ditions upon  the  shipment  of  sailors  in  our  harbors,  and  declares  that 
they  are  applicable  to  foreign,  as  well  as  to  domestic  vessels.  Con- 
gress has  thus  prescribed  conditions  which  attend  the  entrance  of 
foreign  vessels  into  our  ports,  and  those  conditions  the  courts  are 
not  at  liberty  to  dispense  with.  The  interests  of  our  own  shipping 
require  this.  It  is  well  said  by  counsel  for  the  government  in  the 
brief  which  he  was  given  leave  to  file : 

"Moreover,  as  90  per  cent,  of  aU  commerce  in  our  ports  is  con- 
ducted in  foreign  vessels,  it  must  be  obvious  that  their  exemption  from 
these  shipping  laws  will  go  far  to  embarrass  domestic  vessels  in  obtain- 
ing their  quota  of  seamen.  To  the  average  sailor  it  is  a  consideration 
while  in  port  to  have  his  wages  in  part  prepaid;  and  if,  in  a  large 
port  like  New  York,  90  per  cent  of  the  vessels  are  permitted  to  prepay 

303 


CONSULAR  CASES 

such  seamen  as  ship  upon  them,  and  the  other  10  per  cent,  being 
American  vessels,  cannot  thus  prepay,  it  ^ill  be  exceedingly  difficult 
for  American  vessels  to  obtain  crews.  This  practical  consideration, 
presumably,  appealed  to  congress  and  fully  justified  the  provision 
herein  contained." 

We  are  of  the  opinion  that  it  is  within  the  power  of  congress 
to  protect  all  sailors  shipping  in  our  ports  on  vessels  engaged  in 
foreign  or  interstate  commerce,  whether  they  belong  to  citizens  of  this 
coimtry  or  of  a  foreign  nation ;  and  that  our  courts  are  bound  to  en- 
force those  provisions  in  respect  to  foreign,  equally  with  domestic, 
vessels. 

The  questions,  therefore,  certified  by  the  court  of  appeals,  will 
each  be  answered  in  the  affirmative, 

Mr.  Justice  Harlan  concurred  in  the  judgment. 

PAUL  REVERE,  THE,  (1882,  U.  S.) 
10  Fed.  Rep.  156. 
Brown,  District  Court. 

1.  Seamen's  Wages — 'Ettzct  of  Consul's  DiscHAEaE. 

Where  a  consul  has  by  statute  jurisdiction  to  grant  a  discharge,  his  certifi- 
cate thereof,  duly  authenticated,  is  a  bar  to  a  seaman's  claim  for  wages  subse- 
quent to  his  discharge. 

2.  Same. 

Where,  upon  the  proceedings  before  the  consul  on  a  charge  of  criminal  mis- 
conduct, it  does  not  appear  that  any  question  was  made  concerning  the  seaman's 
wages  at  the  time  of  his  discharge,  the  seaman  is  not  precluded  from  claiming  any 
wages  which  may,  upon  the  merits,  appear  to  be  due  to  him. 

3.  Seaman — Punishment  fob  Misconduct. 

Double  punishment  through  loss  of  wages,  in  addition  to  confinement  on 
board,  is  not  to  be  imposed  except  in  cases  where  the  seaman  is  incorrigibly  dis- 
obedient, and  his  confinement  is  necessary  to  the  safety  of  the  ship,  in  consequence 
of  his  own  dangerous  character. 

4.  Same — Double  Punishment  When  Not  Imposed — Case  Stated. 

Where  the  cook  (colored)  shipped  for  a  voyage  from  New  York  to  Yoko- 
hama and  bark,  and  when  two  months  out,  in  an  affray  with  the  steward,  fired  two 
shots  of  a  small  pistol,  by  which  the  steward  received  a  flesh  wound  in  the  wrist, 
and  it  appeared  that  the  steward  was  a  man  of  a  quarrelsome  and  dangerous 
character;  that  the  affray  was  the  result  of  several  previous  quarrels  and  chal- 
lenges to  fight;  and  it  appearing  that  aside  from  this  affray  the  cook  was  neither 
quarrelsome  nor  dangerous  in  his  ordinary  behavior,  and  had  previously  applied 
to  the  captain  for  protection  against  the  steward;  and  that  immediately  after 
firing  he  was  arrested  without  resistance,  put  in  irons  by  (157)  the  orders  of 
the  master,  and  ke7)t  in  confinement  during  the  following  four  months  until  after 
the  arrival  at  Yokohama,  and  that  his  conduct  during  this  time  was  good,  and 

304 


CONSULAR  CASES 

permisBion  to  return  to  duty  had  been  repeatedly  sought  from  the  captain  by  him- 
self and  others  of  the  crew,  held,  that  the  cook  was  entitled  to  his  wages  up  to  the 
time  of  his  discharge  at  Yokohama. 

In  admiralty.     Action  for  seaman's  wages. 

This  action  was  brought  by  the  libellant  (colored)  to  recover  his 
wages  as  cook  on  board  the  ship  Paul  Revere,  on  her  voyage  from 
New  York  to  Yokohama  and  back,  from  June  24  to  September  24, 
1879.  On  Sunday  morning,  September  1,  1878,  about  two  months 
after  the  commencement  of  the  voyage,  an  aifray  between  the  cook 
and  the  steward  took  place  in  the  galley,  in  the  course  of  which  the 
cook  fired  two  shots  of  a  small  pistol  at  the  steward,  by  one  of  which 
the  steward  was  wounded  in  the  wrist.  The  libellant  was  immediately 
seized,  put  in  irons,  and  kept  so,  for  the  most  part,  as  the  mate  testi- 
fied, until  about  a  month  before  reaching  Yokohama,  when,  being  sick, 
the  irons  were  removed  from  him,  though  he  was  still  kept  under 
restraint.  The  vessel  arrived  at  Yokohama  on  December  24,  1878, 
and  on  the  sixth  of  January  the  captain  made  a  complaint  in  writing 
against  the  libellant  before  the  consul  of  an  assault  with  a  deadly 
weapon.  Upon  the  following  day  the  libellant  was  brought  before 
the  consul,  who,  on  the  seventh,  eighth  and  ninth  of  that  month,  ex- 
amined the  steward,  the  first  and  second  officers,  and  the  carpenter  of 
the  vessel.  On  the  thirtieth  of  January  he  rendered  a  decision  as 
follows : 

"After  careful  consideration  of  the  evidence  in  this  matter,  and  in  view 
of  the  fact  that  the  weapon  used  by  the  accused  is  scarcely  more  than  a  toy, 
and  that  it  would  have  been  very  difficult  with  it  to  have  made  a  dangerous 
wound,  and  that  it  therefore  hardly  comes  within  the  definition  of  a  'dangerous 
weapon,'  and  the  accuser  exhibiting  himself  as  a  man  of  irascible  temper,  and  the 
evidence  showing  that  the  offence  charged  against  the  accused  was  the  result  of 
an  altercation,  one  of  many  between  the  same  parties,  and  that  the  accuser  has 
been  discharged  the  ship  by  consent  of  the  master,  the  latter  considering  him  a 
troublesome  and  violent  man,  and  that  the  accused  has  now  been  a  long  time  in 
confinement : 

"I  am  of  opinion  that  the  offence  charged  is  not  of  such  a  serious  char- 
acter as  to  warrant  me  in  subjecting  the  government  to  the  expense  of  transpor- 
tation of  the  accused  and  that  of  the  witnesses  to  the  United  Staes,  and  of  his 
trial  there,  and  I  consider  that  he  has  been  sufficiently  punished  already. 

"It  is  therefore  ordered  that  he  discharged  from  arrest. 

(Signed)  "Thos.  B.  Van  Buren,  Consul  General. 

"Yokohama,  January  31,  1879. 

(158)  "On  being  discharged  from  arrest,  Jackson  expressed  an  unwilling- 
ness to  return  on  board  ship  and  asked  for  his  discharge,  and  the  captain  con- 
senting, he  was  accordingly  discharged,  the  ship  paying  into  the  consulate  one 
month's  extra  wages. 

(Signed)  "Thos.  B.  Van  Buren,  Consul  General. 

"January  31,  1879." 

305 


CONSULAR  CASES 

The  proceedings  before  the  consul  were  duly  certified  and  read 
upon  the  trial.  The  consul's  certificate  of  the  discharge  of  Jackson, 
"according  to  law  ,"  on  January  31,  1879,  was  also  proved,  together 
with  the  receipt  by  the  consul  of  one  month 's  extra  wages. 

Alexander  &  Ash.  for  libellant. 

Henry  Heath,  for  claimant. 

BROWN.  D.  J.  The  consul  at  Yokohama  had  jurisdiction  of 
proceedings  to  discharge  the  seaman  upon  his  own  application  and 
with  the  master's  consent.  His  certificate  of  such  a  discharge,  duly 
proved  and  authenticated,  is  therefore  conclusive,  and  bars  any  claim 
by  the  libellant  to  subsequent  wages.  Coffin  v,  "Weld,  2  Low.  81 ; 
Lamb  v.  Briard,  5  Abb.  Adm.  367 ;  Tingle  v.  Tucker,  Id.  919. 

The  proceedings  before  the  consul  do  not  show  that  any  question 
was  made  before  him  concerning  the  wages  which  might  be  due  to 
the  libellant  up  to  the  time  of  his  discharge,  or  that  any  inquiry  or 
consideration  was  given  to  that  subject.  The  libellant  is,  therefore, 
not  precluded  by  those  proceedings  from  claiming  anything  to  which, 
upon  the  merits,  he  may  be  entitled.  Hutchinson  v.  Coombs,  1  Ware, 
65 ;  The  Nimrod,  Id.  9. 

The  affray  on  the  morning  of  September  1st  was  the  result  of 
repeated  quarrels  between  the  cook  and  the  steward  during  the  two 
months  previous.  The  steward  is  shown  to  have  been  of  a  quarrel- 
some disposition,  and  he  was  discharged  at  Yokohama.  According 
to  the  libellant 's  account  of  the  affray  upon  the  trial,  after  high  words 
between  them  in  the  galley  the  steward  had  rushed  out,  and  presently 
came  back  to  the  door  of  the  galley  vnth  one  hand  in  his  pocket,  hold- 
ing the  handle  of  a  Imife,  recognized  by  the  cook  as  having  a  long 
blade,  and  with  violent  language  challenged  him  to  come  out  and 
fight ;  that  the  cook  asked  him  what  he  had  in  his  pocket,  and  told 
him  to  go  away ;  that  the  steward  then  rushed  towards  him ;  and  that 
the  libellant  thereupon,  believing  his  life  in  danger,  standing  in  the 
doorway  of  his  ovmi  room  leading  from  the  galley,  fired  at  him  twice 
with  a  pistol.  The  steward  testified  before  the  consul  that  the  cook 
had  first  challenged  him  to  fight,  and  that  he  had  afterwards  (159) 
come  to  the  door  of  the  galley  and  renewed  the  challenge;  that  the 
instrument  in  his  hand  was  a  can-opener  and  not  a  knife.  When  the 
mate  and  captain,  upon  hearing  the  pistol  shots,  immediately  went  to 
the  galley,  no  resistance  was  made  by  the  cook;  but  he  said  he  was 
sorry  he  had  not  killed  him.  No  complaint  was  made  of  the  subse- 
quent conduct  of  the  cook,  nor  did  he  at  any  time  show  any  evidences 
of  an  ugly  disposition.  Several  times  during  his  confinement  he  re- 
quested to  be  allowed  to  go  on  duty.  Similar  requests  in  his  behalf 
were  made  by  others  of  the  crew,  none  of  which  were  acceded  to  by 

306 


CONSULAR  CASES 

the  captain.  The  pistol  was  not  owTied  by  Jackson,  but  had  been 
given  to  him  to  be  exchanged  abroad  for  some  foreign  article.  It  was 
scarcely  capable  of  inflicting  a  serious  wound.  The  ball  from  it 
lodged  in  the  steward's  wrist,  but  inflicted  only  a  flesh  wound,  which 
disabled  his  hand  for  two  days  only. 

The  captain  was  examined  before  the  consul,  and  his  deposition 
was  also  taken  in  this  case.  From  these  it  does  not  appear  that  he 
ever  instituted  any  inquiry  into  the  particular  causes  of  the  affray, 
but  he  was  familiar  with  the  previous  quarrelling  between  the  cook 
and  the  steward,  as  he  had  shortly  before,  when  appealed  to  by  the 
cook  for  some  protection  against  the  steward,  told  him  to  get  along 
as  well  as  he  could.  From  the  violent  character  of  the  steward  it 
is  not  certain  that  the  cook  did  not  have  reasonable  cause  to  believe 
himself  in  danger  when  the  steward  approached  him  from  the  galley 
door  before  he  fired ;  but  the  fact  that  he  had  a  pistol  at  hand,  ready 
for  use,  and  his  language  when  arrested  immediately  after  firing, 
show,  not  only  that  he  was  at  the  time  in  great  passion,  but  also  that 
his  act  was  not  merely  an  act  of  self-defense.  The  circumstances, 
while  not  sufficient  to  furnish  a  justification,  do  show  much  palliation 
in  the  degree  of  his  offense.  His  long  subsequent  confinement  by  the 
master  until  the  arrival  at  Yokohama  was  considered  by  the  consul  in 
his  decision  a  sufficient  punishment.  In  my  judgment  it  was  alto- 
gether more  than  was  warranted  at  the  hands  of  the  master,  having 
reference  only  to  the  character  of  the  cook  himself,  and  it  may  be  that 
the  confinement  of  the  cook  till  arrival  at  Yokohama  was  quite  as 
much  an  act  of  prudence  and  protection  to  him,  in  consequence  of 
the  quarrelsome  and  dangerous  character  of  the  steward,  and  the 
captain 's  belief  that  it  was  necessary  to  keep  them  apart.  Aside  from 
this  consideration,  the  evidence  does  not  show  sufficient  in  the  general 
behavior  of  the  cook  to  warrant  the  prevention  of  his  subsequent  (160) 
return  to  duty,  as  he  desired.  To  inflict  upon  him,  under  these  cir- 
cumstances, loss  of  wages  also,  would  be  imposing  a  double  punish- 
ment. 

In  the  case  of  Brower  v.  The  Maiden,  Gilp.  296,  Hopkinson,  J., 
says : 

' '  When  seamen  are  confined  on  board  for  any  misconduct  or  disobedience, 
has  it  ever  been  pretended  that  their  wages  stop,  or  are  therefore  forfeited  during 
confinement?  I  know  of  no  such  case.  Their  imprisonment  is  their  punishment, 
and  forfeiture  of  wages  has  not  been  added  to  it."  See,  also,  Bray  t.  The  Ship 
Atlanta,  Bee,  48;  Wood  v.  The  Nimrod,  Gilp.  83,  89;  Jay  v.  Almy,  1  Wood  * 
M.  262;   Thorn  v.  White,  1  Pet.  Ad.  168,  175. 

It  is  only  where  a  mariner  is  incorrigibly  disobedient,  and  his 
confinement,  in  consequence  of  his  own  dangerous  character,  is  neces- 

307 


CONSULAR  CASES 

9ar>'  to  the  safety  of  the  ship,  that  a  forfeiture  of  wages  has  also  been 
imposed.  It  would  be  not  only  unjust  to  the  seaman,  but  highly  im- 
politic and  dangerous  as  a  precedent,  to  permit  the  vessel  to  make  a 
profit  by  the  confinement  of  seamen  on  board  except  in  cases  of  this 
description.  The  proofs  in  this  case  fall  far  short  of  that,  and  the 
libellant  should,  therefore,  recover  his  wages  up  to  January  31,  1879, 
at  the  rate  of  $30  per  month,  less  $60  advanced  to  him,  with  costs. 

PETERSON'S  WILL,  IN  RE,  (1906,  U.  S.— Denmark) 

101  N.  Y.  Supp.  285;  51  Misc.  367. 

Noble,  Surrogate's  Court,  New  York. 

Ambassadoes  and  Consuls — Consulab  Powees. 

Under  the  treaty  of  April  26,  1826  (8  Stat.  342,  art.  8),  with  the  kingdom  of 
Denmark,  the  Danish  consul  cannot  appear  for  an  infant  party  to  a  proceeding 
for  the  probate  of  a  last  will,  so  as  to  give  the  surrogate's  court  jurisdiction  of 
such  party,  without  the  issuance  of  a  citation. 

In  the  matter  of  the  probate  of  the  last  will  of  Valborg  J.  Peter- 
son.    Citation  issued. 

Abbott  &  Coyne,  for  proponent. 

NOBLE,  S.  This  is  an  application  by  a  consul  of  the  kingdom 
of  Denmark  to  the  United  States  of  America,  in  the  state  of  New 
York,  for  the  probate  of  the  last  will  and  testament  of  a  testatrix 
who,  at  the  time  of  her  death,  was  a  subject  of  the  kingdom  of  Den- 
mark ;  the  sole  executor  named  in  the  will  having  died  before  the 
testatrix.  The  sole  heirs  at  law  and  next  of  kin  are  the  mother,  a 
brother,  a  sister,  and  a  nephew  of  testatrix,  all  of  whom  reside  in 
Copenhagen,  Denmark,  and  are  subjects  of  that  kingdom. 

Under  the  "most  favored  nation  clause"  in  the  treaty  of  April 
26.  1826"  (8  Stat.  342,  art.  8),  between  the  United  States  of  Amer- 
ica and  the  kingdom  of  Denmark,  the  Danish  consul  claims  the  right 
to  represent  the  parties  in  interest  in  this  proceeding  and  to  waive 
the  is.suance  and  service  of  citation  in  their  behalf.  In  the  case  of 
adult  parties  I  do  not  question  liis  right  to  appear  to  execute  the 
necessarj'  waivers  and  consents.  However,  Einer  Bundgaard,  nephew 
of  the  testatrix  ,  is  an  infant  over  the  age  of  14  years.  Under  the 
laws  of  this  state  the  only  way  in  which  a  surrogate's  court  can  ob- 
tain jurisdiction  over  the  estate  of  an  infant  is  by  the  issuance  and 
service  of  a  citation  in  the  manner  prescribed  by  the  statutes. 

In  the  case  of  personal  property,  in  the  treaty  between  the 
United  States  and  the  kinj?  of  Italy,  article  22  of  the  commercial 
treaty  of  1871  (17  Stat.  856),  provides: 

"The  citizens  of  each  of  the  contracting  parties  ahall  have  power  to  dispose 

308 


CONSULAR  CASES 

of  their  personal  goods  within  the  jurisdiction  of  the  other  by  a  sale,  donation, 
testament  or  otherwise,  and  the  representatives  being  citizens  of  the  other  party, 
shall  succeed  in  their  personal  goods,  whether  by  testament  or  ab  inteatato,  and 
they  may  take  possession  thereof,  either  by  themselves  or  others  acting  for  them, 
and  dispose  of  the  same  at  their  will,  paying  such  dues  only  as  the  inhabitants  of 
the  country  wherein  said  goods  are,  shall  be  subject  to  pay  in  like  cases. ' ' 

Under  that  section  the  right  of  a  consul  to  take  possession,  in  be- 
half of  subjects  of  their  respective  countries,  of  personal  property, 
and  to  transmit  it  to  such  countries  for  distribution  in  accordance 
with  the  laws  thereof,  is  unquestionable. 

Again,  imder  the  "most  favored  nation  clause,"  the  treaty  of 
1853  between  the  Argentine  Republic  and  the  United  States,  pro- 
vides as  foUows  (10  Stat.  1009,  art.  9)  : 

(286)  "I^  ^^7  citizen  of  either  of  the  two  contracting  parties  shall  die 
without  will  or  testament,  in  any  of  the  territories  of  the  other,  the  consul 
general  or  consul  of  the  nation  to  which  the  deceased  belonged,  or  the  representa- 
tive of  such  consul  general  or  consul  in  his  absence,  shall  have  the  right  to  inter- 
vene in  the  possession,  administration  and  judicial  liquidation  of  the  estate  of 
the  deceased,  conformably  with  the  laws  of  the  country,  for  the  benefit  of  the 
creditors  and  legal  heiri. " 

Under  this  treaty  the  consul  general,  or,  in  his  absence,  the  con- 
sul, is  given  the  right  "to  intervene  in  the  possession,  administration 
and  judicial  liquidation  of  the  estate  of  the  deceased,  conformably 
with  the  laws  of  the  country,  for  the  benefit  of  the  creditors  and  legal 
heirs. ' ' 

The  provisions  of  these  several  treaties  relate  to  personal  property 
only,  and  the  cases  quoted  in  the  brief  of  the  learned  counsel  for  the 
proponent  herein,  to  wit.  Matter  of  Tartaglio,  12  Misc.  Rep.  245, 
33  N.  Y.  Supp.  1121,  Matter  of  Fattosini,  33  Misc.  Rep.  18,  67  N.  Y. 
Supp.  1119,  Matter  of  Lobrasciano,  38  Misc.  Rep.  415,  77  N.  Y.  Supp. 
1040,  Matter  of  Davenport,  43  Misc.  Rep.  573,  89  N.  Y.  Supp.  537,  as 
well  as  the  Massachusetts  case  of  in  re  Wyman,  reported  in  77  N.  E. 
379,  are  all  administration  cases,  and  therefore  decide  only  the  right 
of  a  foreign  consul  to  take  possession  of  a  decedent 's  personal  property 
under  the  provisions  of  the  treaty  with  his  country.  I  have  found 
no  case  reported  in  which  the  right  of  a  consul  to  waive  the  rights 
of  an  infant  in  a  proceeding  in  a  surrogate's  or  other  court  of  this 
state  is  passed  upon,  and  as  it  is  not  expressly  covered  by  the  treaty 
between  the  United  States  and  the  kingdom  of  Denmark,  or  any 
other  country,  the  laws  of  the  state  of  New  York  must  govern.  These 
laws  do  not  admit  of  an  infant  waiving  any  of  its  rights,  and,  of 
course,  no  one  else  has  any  authority  to  do  what  the  infant  itself  could 
not  do.    Under  these  circumstances  the  infant  party  in  this  pro- 

309 


CONSULAR  CASES 

ceeding  must  be  brought  under  the  jurisdiction  of  the  court  through 
the  medium  of  a  citation  properly  issued  and  served. 
Let  citation  issue  accordingly. 

PIONEER.  THE,   (1863.  U.  S.— Austria) 
Blatchf.  Prize  Cases  666;  Fed.  Cases  11,175. 
Nelsoti,  Circuit  Court. 

[Trade  of  consul,  merchant  in  enemy's  country  will  not  be  pro- 
tected from  interruption  by  seizure  and  condemnation  of  his  property 
as  enemy  property. — Ed.] 

POOL  V.  WELSH,  (1830,  U.  S.) 
Fed.  Cases  11,269. 
Hopkinson,  District  Court. 

[Payment  of  three  months  wages  in  case  of  discharge  of  seamen. 
Right  of  consul  to  commission. — Ed.] 

POOLEY  V.  LTJCO,  (1896,  U.  S.) 

72  Fed  Eep.  561. 

Wellborn,  Circuit  Court. 

"WELLBORN,  District  Judge.  One  of  the  defendants,  Juan  M. 
Luco,  pleads  to  the  jurisdiction  of  the  court,  and  the  question  now  to 
be  determined  is  as  to  the  sufficiency  of  this  plea.  The  suit  is  brought 
by  the  complainant,  a  subject  of  Great  Britain,  against  said  Luco 
and  various  other  parties,  alleged  to  be  citizens  of  the  United  States, 
to  foreclose  a  mortgage  executed  by  said  Luco  and  others  of  the  de- 
fendants, on  certain  real  estate,  situated  in  the  county  of  San  Diego, 
in  the  Southern  District  of  California.  Said  Luco  denies  that  he  is 
a  citizen  of  the  United  States,  and  alleges  that  he  is  a  citizen  of  Chile, 
and  the  duly-appointed  and  recognized  consul-general  of  Chile  for  the 
United  States,  residing  in  the  city  of  San  Francisco,  state  of  Cali- 
fornia. 

Jurisdiction,  if  it  exists  at  all  must  rest  upon  one  or  more  of  the 
following  grounds:  First,  diverse  citizenship  of  the  parties;  second, 
consular  status  of  defendant  Luco;  third,  location  in  this  district  of 
the  res, — the  mortgaged  property.  These  grounds  I  will  examine  in 
the  order  of  their  statement. 

1.  The  question  whether  or  not  a  circuit  court  has  jurisdiction 
of  a  case,  on  the  ground  that  both  parties  are  aliens,  has  been  author- 
itatively and  often  decided  in  the  negative.  Montalet  v.  Murray,  4 
Cranch,  46;  Hodgson  v.  Bowerbank,  5  Cranch,  304;  Prentiss  v.  Bren- 

310 


CONSULAR  CASES 

nan,  Fed.  Cas.  No.  11,  385;  Jackson  v.  Twentyman,  2  Pet.  136;  Rateau 
V.  Bernard,  Fed.  Cas.  No.  11,  579;  Hinckley  v.  Byrne,  1  Deady,  224, 
Fed  Cas.  No.  6,  510. 

In  this  last  case,  Deady,  J.,  used  the  following  language : 

"It  has  long  since  been  settled  that  an  action  between  aliens  only  cannot 
be  maintained  in  the  circuit  court;  that  the  language  of  the  judiciary  act  giv- 
ing jurisdiction  where  '  an  alien  is  a  party '  must  be  restrained  within  the  tenns 
of  the  constitution,  which  only  'extends  the  judicial  power'  to  an  action  between 
an  alien  and  a  citizen  of  a  state  of  the  United  States.  When  both  plaintiff  and 
defendant  are  aliens,  the  judicial  power  of  the  United  States  does  not  extend  to 
the  caie. " 

The  controversy  in  the  case  at  bar  being  between  aliens,  there  is 
not  such  diverse  citizenship  as  brings  the  case  within  the  federal 
jurisdiction. 

(562)  2.  Has  the  court  jurisdiction  because  of  the  consular 
status  of  the  defendant  ?  In  his  opening  brief,  plaintiff  contends  that 
"the  circuit  court  of  the  United  States  has  jurisdiction,  concurrent 
with  the  district  court,  in  cases  affecting  consuls;"  citing  Bors  v. 
Preston,  111  U.  S.  252,  4  Sup.  Ct.  407.  I  have  examined  the  case 
cited  carefully,  and,  so  far  from  supporting,  it  seems  to  me  antagonis- 
tic to  complainant's  contention.  In  that  case  the  plaintiff  was  a  citizen 
of  New  York,  and  the  defendant  consul,  at  the  port  of  New  York, 
for  the  kingdom  of  Norway  and  Sweden;  but  the  latter 's  citizenship 
did  not  aflBrmatively  appear,  either  in  the  pleadings  er  elsewhere  in 
the  record.  The  ruling  of  the  court  was  to  the  effect  that,  inasmuch 
as  the  complainant  was  a  citizen  of  New  York,  jurisdiction  must  de- 
pend upon  the  alienage  of  the  defendant;  and,  further,  that  such 
alienage  could  not  be  inferred  from  the  fact  that  the  defendant  held 
and  exercised  the  office  of  consul  of  a  foreign  government,  and,  there- 
fore, that  the  record  "did  not  present  a  case  which  the  circuit  court 
had  authority  to  determine. ' '  Since  the  consular  character  of  the  de- 
fendant was  one  of  the  prominent  facts  in  the  case,  the  decision  neces' 
sarily  holds  that  the  fact  of  a  defendant  being  a  consul  of  a  foreign 
government  does  not  confer  jurisdiction  upon  the  circuit  court.  The 
opinion,  however,  declares  that,  where  there  is  a  controversy  between 
a  citizen  and  an  alien,  jurisdiction  is  not  defeated  by  the  fact  that  the 
alien  happens  to  be  the  consul  of  a  foreign  government. 

The  other  case  cited  by  the  plaintiff  (Valarino  v.  Thomson,  7  N. 
Y.  576)  seems  to  me  to  be  also  strongly  against  his  contention.  While 
the  points  there  decided  were :  "A  consul  of  a  foreign  government, 
residing  in  the  United  States,  is  not  liable  to  be  sued  in  the  state 
courts. — The  fact  that  the  consul  is  impleaded  with  a  citizen  upon  a 
joint  contract  will  not  give  jurisdiction  to  the  state  courts, ' ' — yet  the 

311 


CONSULAR  CASES 

decision  was  based  upon  the  ground  that  the  district  court  of  the 
United  States  had  jurisdiction  of  the  cause,  exclusive  of  the  state 
courts.  Nowhere  in  the  opinion  is  there  even  an  intimation  of  juris- 
diction in  the  circuit  court. 

In  Lorway  v.  Lousada,  1  Lowell,  77,  Fed.  Cas.  No.  8,  517,  also 
cited  by  the  plaintiff,  the  action  was  pending  in  the  district  court, 
and  the  decision  was  simply  to  the  effect  that  that  court,  not  the 
circuit  court,  had  jurisdiction.  The  first  paragraph  of  the  syllabus 
is  as  follows : 

' '  The  district  court  has  jurisdiction  of  a  suit  brought  by  an  alien  against 
the  consul  of  his  nation,  residing  within  the  district,  to  recover  the  amount  of  of- 
ficial fees  improperly  exacted." 

The  Havana,  1  Sprague,  402,  Fed.  Cas.  No.  6,  226,  another  of 
plaintiff's  citations,  was  a  case  also  in  the  district  court,  and  in 
admiralty.  The  discretionary  power  to  hear  and  determine  a  cause, 
there  asserted,  rests  upon  a  rule  of  law  peculiar  to  admiralty,  and 
confined  to  the  district  court. 

In  Lorway  v.  Lousada,  supra,  the  rule  is  expressed  thus: 

"Courts  of  admiralty,  it  is  true,  exercise  a  considerable  latitude  of  discre- 
tion in  entertaining  suits  between  strangers;  and  they  are  guided  to  some  ex- 
tent in  the  particular  case  by  the  nature  of  the  controversy,  whether  it  involves 
a  question  of  general  law  or  only  the  local  law  of  the  foreign  country.  This  dis- 
tinction, perhaps,  arose  out  of  the  great  diffidence  with  which  courts  (563)  o' 
admiralty  in  England  were  formerly  accustomed  to  approach  questions  of  local 
law,  whether  domestic  or  foreign.  However  this  may  be,  it  is  now  the  better 
opinion,  in  this  country  at  least,  that  where  circumstances  make  it  either  neces- 
sary or  highly  convenient  that  the  jurisdiction  should  be  retained,  as,  for  in- 
stance, when  the  voyage  of  a  foreign  vessel  is  broken  up  here,  a  court  of  ad- 
miralty will  take  the  case,  whether  the  law  which  it  will  be  bound  to  administer 
happen  to  be  local  or  general.  In  short,  the  question  is  one  of  discretion  in  the 
exercise  of  an  admitted  power,  and  not  of  the  power  itself.  See,  per  Taney,  C. 
J.,  Taylor  v.  Carryll,  20  How.  611;  The  Havana,  1  Sprague,  402,  Fed.  Cas.  No., 
6,226;  The  Wilhelm  Frederick,  1  Hagg.  Adm.  138;  Patch  v.  Marshall,  1  Curt. 
452,  Fed.  Cas.  No.  10,79.3;  The  Jerusalem,  2  Gall.  191,  Fed.  Cas.  No.  7,293; 
notes  to  2  Pars.  Mar.  Law.  bk,  3,  c.  3.  And  the  remark  of  Mr.  Justice  Curtis 
in  Patch  v.  Marshall,  1  Curt.  455,  Fed.  Cas.  No.  10,793,  is  to  be  understood,  I  have 
no  doubt,  in  reference  to  a  court  of  admiralty  and  its  jurisdiction,  which  alone 
was  involved  in  that  case. ' ' 

No  case  has  been  brought  to  my  attention  where  it  has  been  held, 
or  even  intimated,  that  the  consular  character  of  a  party  to  the  con- 
troversy gives  jurisdiction  to  the  circuit  court.  Nor  do  I  believe 
that  .such  a  precedent  can  be  found.  There  is  no  statutory  provision 
conferring  upon  the  r-ircnit  court  jurisdiction  on  the  ground  indicated, 
while  the  jurisdiction  seems  to  be  granted,  in  terms,  to  the  district 
courts.     Rev.  St.  U.  S.  Sec.  563,  subd.  18. 

312 


CONSULAR  CASES 

In  Bors  v.  Preston,  supra,  the  supreme  court,  at  page  263,  111  U. 
^.  and  page  407,  4  Sup.  Ct.,  says: 

"But  aa  this  court  and  the  district  courts  are  the  only  courts  of  the  Union 
which,  under  the  constitution  or  the  existing  statutes,  are  invested  with  jurisdic- 
tion, without  reference  to  the  citizenship  of  the  parties,  of  suits  agains  consuls, 
or  in  which  consuls  are  parties,  and  since  the  circuit  court  was  without  jurisdic- 
tion, unless  the  defendant  is  an  alien  or  a  citizen  of  some  state  other  than  New 
York,  it  remains  to  consider  whether  the  records  shows  him  to  be  either  such 
citizen  or  an  alien." 

See,  also,  Lorway  v.  Lousada,  supra. 

Whether  the  state  courts  have  concurrent  jurisdiction  with  the 
district  courts  in  suits  against  consuls  since  the  repeal  of  paragraph 
8  of  section  711  of  the  revised  statutes  has  not  been  definitely  adjudi- 
cated. Froment  v.  Duclos,  30  Fed.  385.  Plaintiff,  in  his  concluding 
brief,  suggests  that  although  the  supreme  court,  in  Bors,  v.  Preston, 
has  declared  that  subdivision  8  of  section  711  of  the  revised  statutes 
is  repealed,  ' '  yet  we  find  it  to-day  in  the  second  edition  of  the  revised 
statutes,"  etc.  While  it  is  true  that  the  subdivision  of  the  section  in 
question  is  still  found  in  the  second  edition  of  the  revised  statutes, 
yet  it  is  printed  in  italics,  thus  denoting  that  the  subdivision  is  re- 
pealed. See  preface  to  second  edition  of  the  revised  statutes.  How- 
ever, it  is  not  necessary,  in  this  case,  to  decide  either  upon  the  juris- 
diction of  the  state  courts  or  the  federal  district  courts.  Whatever 
may  be  the  law  with  reference  to  these  courts,  I  am  clearly  of  opinion 
that  the  circuit  court  has  not  jurisdiction  of  a  case  because  of  the 
consular  character  of  the  defendant. 

3.  The  remaining  question  is:  Does  the  situation,  in  this  dis- 
trict, of  the  mortgaged  property,  give  jurisdiction  to  the  circuit  court  ? 
To  my  mind,  clearly  not.  Mossman  v.  Higginson,  4  Dall.  11.  In 
that  case  the  suit  was  brought  to  foreclose  a  mortgage.  (564)  Com- 
plainant was  a  subject  of  Great  Britain.  The  record  did  not  dis- 
close the  citizenship  of  the  defendants.  The  jurisdiction  of  the  court 
was  objected  to  ,  because  of  this  latter  fact.  Complainant  below  urged 
that,  since  the  suit  was  to  foreclose  a  mortgage,  the  mere  alienage  of 
one  of  the  parties  was  sufficient.  To  this  it  was  replied  by  the  de- 
fendants : 

"The  judiciary  act  was  only  intended  to  carry  the  constitution  into  effect,  and 
cannot  amplify  or  alter  its  provisions.  The  constitution  nowhere  gives  jurisdiction 
(nor  has  any  judge  ever  countenanced  the  idea)  in  suits  between  alien  and  alien. 
It  is  not  an  exception  to  the  rule  that  the  bill  in  equity  is  in  the  nature  of  a  pro- 
ceeding in  rem,  for  there  cannot  be  a  foreclosure  of  the  equity  of  redemption 
without  a  personal  suit. ' ' 


313 


CONSULAR  CASES 

The  second  paragraph  of  the  syllabus  of  the  court  is  as  follows : 

' '  In  proceedings  in  a  federal  court  in  equity  to  foreclosure,  it  is  as  neces- 
sary  to  describe  the  parties  as  in  any  other  suit." 

The  opinion  of  the  court  was  brief,  and  as  follows : 

"The  decisions  on  this  subject  govern  the  present  case;  and  the  eleventh 
section  of  the  judiciary  act  can  and  must  receive  a  construction,  consistent  with 
the  constitution.  It  says,  it  is  true,  in  general  terms,  that  the  circuit  court  shall 
have  cognizance  of  suits  '  where  an  alien  is  a  party ' ;  but  as  the  legislative  power 
of  conferring  a  jurisdiction  on  the  federal  courts  is,  in  this  respect,  confined  to 
suits  between  citizens  and  foreigners,  we  must  so  expound  the  terms  of  the  law 
as  to  meet  the  case  'where,  indeed,  an  alien  is  one  party,'  but  a  citizen  is  the 
other.  Neither  the  constitution  nor  the  act  of  congress  regards,  on  this  point,  the 
subject  of  the  suit,  but  the  parties.  A  description  of  the  parties  is  therefore  in- 
dispensable to  the  exercise  of  jurisdiction." 

It  will  be  observed  that  the  judiciary  act  of  1789,  as  stated  by 
the  court  in  the  opinion  last  quoted,  provided  "that  the  circuit  court 
shall  have  cognizance  of  suits  'where  an  alien  is  a  party ;'  "  yet,  under 
that  provision,  the  court,  in  view  of  the  constitutional  provision 
limiting  jurisdiction  to  suits  between  citizens  and  foreigners,  held 
that  jurisdiction  did  not  exist,  except  "where,  indeed,  an  alien  is  one 
party,  but  a  citizen  is  the  other."  The  expression  found  in  the 
judiciary  act  of  1789,  "where  an  alien  is  a  party,"  is  omitted  from 
the  judiciary  acts  of  1875,  1887,  and  1888,  and  the  cases  covered  by 
said  expression,  as  judicially  construed,  provided  for  in  the  words 
"or  a  controversy  between  citizens  of  a  state  and  foreign  states,  citi- 
zens, or  subjects."  Section  8  of  the  judiciary  act  of  March  3,  1875, 
referred  to  in  complainant's  brief  and  above  cited,  entitled  "an  act  to 
determine  the  jurisdiction  of  the  circuit  courts  of  the  United  States, 
and  to  regulate  the  removal  of  cases  from  state  courts,  and  for  other 
purposes,"  providing  for  service  upon  absent  defendants  in  suits 
to  enforce  liens,  etc.,  does  not  purport  to  confer  jurisdiction  where  it 
would  not  otherwise  exist,  but  simply  prescribes  certain  procedure 
in  cases  where  jurisdiction  does  exist;  or,  more  specifically,  where  a 
suit  is  within  the  jurisdiction  of  the  court,  and  the  object  of  the  suit 
is  to  enforce  a  lien,  etc.,  and  some  of  the  defendants  are  absent  from 
the  di.strict  within  which  the  suit  is  brought,  then  the  section  is 
applicable,  and  simply  provides  a  mode  of  service  on  such  defendants, 

(565)  The  case  of  "Wheelwright  v.  Transportation  Co.  50  Fed. 
709,  cited  by  complainant,  does  not  conflict  with  this  construction 
of  said  act,  because  in  that  ease,  which  was  brought  in  Louisiana, 
there  was  diverse  citizenship,  the  plaintiff  being  a  citizen  of  the  state 
of  New  York,  and  the  defendant  a  citizen  of  the  state  of  New  Jersey. 
While  it  is  true  the  opinion  speaks  of  said  section  8  as  conferring  juris- 

314 


CONSULAE  CASES 

diction,  yet  is  must  be  remembered  that  the  question  of  jurisdiction, 
accurately  speaking,  was  not  before  the  court,  because,  admittedly, 
there  was  such  diverse  citizenship  as  gave  jurisdiction.  The  real 
question  was  whether  or  not,  admitting  the  parties  to  be  citizens  of 
different  states,  the  defendants  could  be  sued  in  a  district  other  than 
that  of  his  own  or  plaintiff's  residence.  This  was  a  question,  not  of 
jurisdiction,  but  simply  involving  a  matter  of  personal  privilege  of 
the  defendant. 

I  am  of  the  opinion  that  the  plea  of  defendant  Luco  is  sufficient 
in  law,  and  the  same  will  be  allowed. 

POPPING  V.  THE  SIRIUS,  see  The  Sirius. 

POTTER  V.  OCEAN  INS.  CO.,  (1837,  U.  S.) 
3  Sumn.  27;  Fed.  Cases  11,  335. 
Story,  Circuit  Court. 

(42)  (Extract)  In  relation  to  the  item  for  the  survey  at 
Tampico,  there  are  three  objections  stated  in  the  exceptions  to  its 
allowance.  First,  that  the  consul  had  no  jurisdiction  to  order  a  sur- 
vey; and  that  it  should  have  been  ordered  by  a  maritime  court.  It 
is  certainly  the  usual  practice  of  courts  of  admiralty,  and  I  deem  it 
a  very  useful  and  beneficial  practice,  to  order  surveys  in  cases  of  this 
sort,  as  a  matter  of  admiralty  and  maritime  jurisdiction  within  their 
cognizance,  and  in  my  judgment,  rightfully  within  their  cogniz- 
ance.^ 

But  I  am  not  aware,  that  it  has  ever  been  held  to  be  indispensible 
to  the  validity  of  a  survey,  that  it  should  eminate  from  such  a  source. 
The  object  of  a  survey  is  to  assist  the  judgment  of  the  master,  as  to 
his  proceeding  to  repair  damage,  or  to  sell  (43)  the  ship.  It  is  de- 
signed to  protect  him  in  the  fair  discharge  of  his  difficult  and  often 
critically  responsible  duty  in  great  emergencies,  by  giving  him  the 
aid  of  the  opinion  of  other  men  of  sound  judgment,  intelligence,  and 
skill  in  naval  affairs.  Indeed,  this  course  is  so  universally  adopted  in 
practice,  that  a  master,  who  should  venture  to  deviate  from  it,  would 
be  treated  as  guilty  of  some  improvidence,  if  not  of  gross  rashness  and 
neglect  of  duty.  A  survey  is  a  common  public  document,  looked  to 
both  underwriters  and  owners,  as  affording  the  means  of  ascertaining 
upon  the  very  spot,  at  the  very  time,  the  state  and  condition  of  the 

*  This  jurisdiction  seems  incidentally  affirmed  in  the  case  of  Dorr  v.  Pa- 
cific Insurance  Company,  7  Wheaton's  R.  612,  613,  and  of  Janney  v.  Columbian 
Insurance  Company,  10  Wheaton's  R.  411,  418.  Among  my  own  MSS.  is  a  copy 
of  a  decree  of  the  admiralty  court  at  Boston,  in  1745,  before  Judpe  Auchmuty, 
in  which,  upon  petition  of  the  masters  to  survey  a  vessel,  (The  Three  Marys), 
she  was  condemned,  and  ordered  to  be  sold  as  unseaworthy. 

315 


CONSULAR  CASES 

ship,  and  other  property  at  hazard.  In  some  policies,  as  for  example, 
>vhen  what  is  technically  called  the  "rotton  clause"  is  inserted,  such 
a  document  seems  indispensable;  as  the  survey  may  amount  to  a 
discharge  of  the  underwTiters/ 

But  although  surveys  are  and  may  be  thus  ordered  by  courts 
of  admiralty,  I  am  not  aware,  as  I  have  already  said,  that  this  is  an 
indispensable  requisite.  On  the  contrary,  a  survey  may  be  made 
upon  the  mere  private  application  of  the  master  directly  to  the  sur- 
veyors; and  there  does  not  seem  any  good  reason,  why,  if  an  American 
consul  should  interpose  in  behalf  of  the  master,  and  with  a  view  to 
assist  him,  should  appoint  the  surveyors  at  his  request,  and  thereby 
sanction  their  competency  to  the  task,  such  an  appointment  should 
be  deemed  objectionable.  As  a  know-n  public  officer,  the  act  of  a 
consul  would,  even  if  he  had  no  express  or  implied  authority  to  make 
the  appointment  ex  officio,  be  deemed  an  act  of  higher  authority,  and 
more  entitled  to  public  confidence,  than  that  of  the  master  him- 
self, and  might  be  an  inducement  to  the  surveyors  to  undertake  the 
duty  with  more  promptitude  and  responsibility. 

PRESIDENT,  THE,  (1804,  Great  Britain— U.  S.) 

5  Rob.,  C.  277. 

Sir  William  Scott,  High  Court  of  Admiralty. 

(279)  (Extract)  It  has  appeared,  I  think,  in  other  cases,  to 
be  the  disposition  of  the  American  government  to  confer  the  privileges 
of  American  navigation  on  vessels  occupied  by  their  consuls  in  foreign 
states.  That  government  has,  undoubtedly,  a  perfect  right  to  grant 
such  a  privilege  for  the  purposes  of  their  own  navigation ;  at  the  same 
time,  that  this  country  is  also  at  liberty  to  apply,  what  we  consider  as 
the  more  correct  principle  of  the  law  of  nations,  so  far  as  third  parties 
are  concerned. 

RABASSE.  SUCCESSION  OF,  (1895,  U.  S.— France) 

17  So.  867;  47  La.  An.  14rA;  49  Am.  St.  Rep.  433. 

Miller,  Supreme  Court  of  Louisiana. 

Appeal  from  district  court,  parish  of  Orleans;  Thomas  C.  W. 
Ellis,  judge. 

In  the  matter  of  the  succession  of  Eugene  Rabasse.  From  a 
judgment  dismissing  the  intervention  of  a  delegate  to  represent  cer- 
tain French  heirs,  the  intervener  appeals.     Reversed. 


*  See  cases  on  this  clause — Door  v.  Pacific  Insurance  Company,  7  Wheat- 
on's  R.  .582.  .Tanney  v.  Columbian  Insurance  Company,  10  Wheaton's  R.  411, 
416  to  418.     1  Phillips'  Insurance,  154,  158. 

316 


CONSULAR  CASES 

J.  Numa  Augustin,  for  delegate,  etc.,  intervener,  and  third 
opponent,  appellant.  Theodule  Buisson,  Chretien,  &  Suthon,  for  at- 
torney for  absent  heirs,  appellees. 

MILLER,  J.  The  deceased,  a  resident  of  New  Orleans,  left 
heirs  residing  in  France.  Our  treaty  with  that  country  provides, 
in  case  of  death  of  any  citizen  of  France  in  the  United  States  with- 
out any  testamentary  executor  by  him  appointed,  the  consul  shall 
have  the  right  to  appear  personally  or  by  delegate  in  all  proceedings 
on  behalf  of  the  absent  or  minor  heirs.  The  stipulation  is  reciprocal, 
applying  to  estates  of  Americans  dying  in  France.  The  French 
consul  here  appointed  a  delegate  to  represent  the  French  heirs,  and 
he  applied  for  recognition  to  the  civil  district  court  in  which  the  suc- 
cession was  being  administered.  That  court  denied  the  application, 
and  appointed  an  attorney  for  the  absent  heirs.  From  the  judgment 
dismissing  the  intervention  of  the  appellant,  claiming  recognition  as 
delegate,  he  prosecutes  this  appeal. 

There  is  a  motion  to  dismiss  the  appeal  on  the  ground  there  is 
no  pecuniary  interest  involved.  There  is  involved  a  question  of  the 
construction  and  the  execution  of  our  treaty  with  France  in  respect 
to  the  interest  of  French  heirs  in  a  succession  of  over  $100,000,  The 
motion  is  denied.  If  the  treaty  is  susceptible  of  the  construction  of 
the  appellant,  the  result  would  be  to  avoid  the  appointment  of  the 
attorney  for  the  absent  heirs,  and  require  the  recognition  of  the  ap- 
pellant as  the  delegate  of  the  French  consul.  In  our  view,  the  stipu- 
lation in  this  treaty  puts  the  delegate  in  the  position  of  an  agent  of 
the  French  heirs,  Avith  the  same  effect  as  if  he  held  their  mandate  to 
represent  them  as  heirs.  That  was  the  manifest  purpose,  and  the 
language  of  the  treaty  plainly  expresses  that  intention.  There  is  no 
power  to  appoint  an  attorney  for  absent  heirs  when  the  heirs  are 
present  or  represented.  Civ,  Code,  art.  1210;  Robouam  v.  Robouam, 
12  La.  73 ;  Addison  v.  Bank,  15  La,  527.  It  is  idle  to  call  in  question 
the  competency  of  the  treaty-making  power,  nor  do  we  think  any 
question  can  be  raised  that  the  subject  of  this  treaty  under  discussion 
here  is  properly  within  the  scope  of  the  power.  That  subject  is  the 
rights  of  French  subjects  to  be  represented  here  by  the  consul  of 
their  country  ,  On  that  subject  the  treaty  provision  is  plain.  The 
treaty  by  the  organic  law  is  the  supreme  law  of  the  land,  binding  all 
courts,  state  and  federal.  Const,  U,  S,  art,  6,  par,  2;  1  Kent,  Comm, 
165 ;  Ware  v,  Hylton,  3  Dall,  197 ;  Prevost  v.  Greneaux,  19  How,  1 ; 
Hauenstein  v,  Lynham,  100  U,  S.  483,  488 ;  Geofroy  v.  Riggs,  133  U.  S, 
264,  266,  10  Sup,  Ct,  295;  Treaty  with  France,  1853  (10  Stat,  999), 
art,  12:  Treaty  with  Belgium,  1882  (21  Stat.  99).  The  treaty  discloses 
no  purpose  to  require  pur  courts  to  appoint  as  the  attorney  for  absent 

817 


CONSULAR  CASES 

heirs  the  delegate  of  the  French  consul.  Its  purpose  is  accomplished 
by  placing  the  delegate  before  the  court,  as  representing  the  absent 
heirs,  and  precluding  the  appointment  of  any  attorney  to  represent 
them. 

It  is  therefore  ordered,  adjudged,  and  de-  (868)  creed  that  the 
judgment  of  the  lower  court,  dismissing  the  intervention  of  the  dele- 
gate of  the  French  consul,  be  avoided  and  reversed;  and  it  is  now 
ordered,  adjudged,  and  decreed  that  said  delegate  be  recognized  as 
such  delegate,  authorized  to  represent  the  absent  heirs  in  this  suc- 
cession, and  that  the  succession  pay  the  costs. 

On  Rehearing. 

(June  29,  1895) 

Our  decision  in  this  case  affirms  that  the  French  heirs  of  this 
succession  are  to  be  deemed  represented  by  the  delegate  of  the 
French  consul,  with  the  same  effect  as  if  the  delegate  held  their  power. 
This  view  of  the  treaty  to  which  our  decision  is  confined,  displaces  the 
power  of  the  lower  court  (exerted  in  ordinary  cases)  to  appoint  any 
attorney  to  represent  the  French  heirs  of  this  succession.  The  re- 
hearing is  refused. 

REDMON  v.  SMITH,  (1899,  U.  S.) 

54  S.  W.  636;  22  Tex.  Civ.  App.  323. 

Neill,  Court  of  Civil  Appeals  of  Texas. 

(Syllabus)  The  jurisdiction  of  actions  by  or  against  consuls,  conferred  on 
the  federal  courts  by  the  federal  constitution  and  by  Rev.  St.  U.  S.  1878  (2d 
Ed.)  Sect.  563,  687,  enacted  in  pursuance  thereto,  is  not  exclusive  of  the  juris- 
diction of  the  state  courts,  there  being  no  express  provision  to  that  effect, 

RELIANCE,  THE,  See  One  Hundred  and  Ninety-four  Shawls, 

RICE  v.  AMES,  (1900,  U.  S.) 

180   U.   S.  371. 

Brown,  Supreme  Court, 

(Extract)  We  do  not  wish  however,  to  be  understood  as  holding 
that,  in  extradition  proceedings,  the  complaint  must  be  sworn  to  by 
persons  havHng  actual  knowledge  of  the  offence  charged.  This  would 
defeat  the  whole  object  of  the  treaty,  as  we  are  bound  to  assume  that 
no  foreign  government  possesses  greater  power  than  our  own  to 
order  its  citizens  to  go  to  another  country  to  institute  legal  proceed- 
ings. This  is  obviously  impossible.  The  ordinary  course  is  to  send 
&n  officer  or  agent  of  the  government  for  that  purpose,  and  Rev,  Stat, 

318 


CONSULAR  CASES 

sec.  5271,  makes  special  provision  that  "in  every  case  of  complaint 
and  of  a  hearing  upon  the  return  of  the  warrant  of  arrest,  any  deposi- 
tions, warrants,  or  other  papers  offered  in  evidence,  shall  be  admitted 
and  received  for  the  purpose  of  such  hearing  if  they  shall  be  properly 
and  legally  authenticated  so  as  to  entitle  them  to  be  received  as  evi- 
dence of  the  criminality  of  the  person  so  apprehended,  by  the  tribunals 
of  the  foreign  country  from  which  the  accused  party  shall  have  es- 
caped, and  copies  of  any  such  depositions,  warrants,  or  other  papers, 
shall,  if  authenticated  according  to  the  law  of  such  foreign  country, 
be  in  like  manner  received  as  evidence,  of  which  authentication  the 
certificate  of  the  diplomatic  or  consular  officer  of  the  United  States 
shall  be  sufficient.  This  obviates  the  necessity  which  might  otherwise 
exist  of  confronting  the  accused  with  the  witnesses  against  him. 

RILEY  V.  THE  OBELI  MITCHELL,  (1861,  U.  S.) 
Fed.  Cases  11,839. 
Betts,  District  Court. 

[Consul  orders  survey  of  ship — Consul  acts  in  superintending 
sale  of  sliip  were  exclusively  official — rule  in  law  and  equity  which 
inhibits  a  trustee,  made  such  by  operation  of  law,  as  much  as  one 
acting  imder  special  appointment,  from  acquiring  an  interest,  applies 
in  this  case. — Ed.] 

EGBERT  RITSON,  THE,  (1871,  U.  S.) 
1  Low.  574;  Fed.  Cases  11,895. 
Lowell,  District  Court. 

[Case  in  which  the  court  dismissed  a  libel  where  the  consul  filed 
a  protest  against  the  courts  taking  jurisdiction  of  the  libel  brought  by 
seamen  for  wages. — Ed.] 

ROBERTS  V.  EDDINGTON,  (1801,  Great  Britain) 

4  Esp.  88. 

Lord  Kenyon,  Nisi  Prius. 

This  was  an  act  on  a  charter  party,  by  which  the  defendant 
chartered  his  ship  to  the  plaintiff,  engaged  to  go  on  a  voyage  from 
London  to  St.  Petersburg,  and  bring  home  a  cargo  of  deals  on 
their  account;  dangers  of  the  sea  and  restraints  of  princes  only  ex- 
cepted, in  the  common  form. 

The  ship  had  not  proceeded  to  St.  Petersburg. 

The  defence  relied  upon  by  the  defendant's  counsel,  was,  that 
the  ship,  in  the  course  of  her  voyage,  had  met  wdth  storms  and  bad 
weather,  which  had  forced  her  into  Dantzic  after  she  had  passed  the 

319 


CONSULAR  CASES 

Soimd ;  and  that,  during  her  stay  there,  the  Russian  embargo  had  been 
laid  on ;  so  that,  if  the  vessel  had  proceeded  to  Petersburg,  the 
captain  and  crew  must  have  gone  into  slavery. 

The  plaintiffs  imputed  the  failure  of  the  voyage  to  negligence 
and  misconduct  on  the  part  of  the  defendant;  and  proposed  to  give 
in  evidence  Avhat  is  termed  the  Sound  list  and  the  Petersburg  list, 
which  are  documents  transmitted  by  the  British  consul  abroad  at 
those  different  places  to  the  merchants  at  home,  which  are  publicly 
hung  up  at  Batson's  coffee-house,  for  the  inspection  of  the  public, 
and  which  state  the  arrival  of  the  different  ships  at  these  places.  By 
this  evidence,  the  plaintiffs  proposed  to  prove,  that  other  ships  which 
had  sailed  in  the  same  fleet  with  the  defendant's  ship,  and  some  even 
long  after,  had  passed  the  Sound,  and  arrived  safe  at  Petersburg,  and 
had  afterwards  returned  safely  with  a  cargo. 

LORD  KEXYON.  These  lists  cannot  be  received  in  evidence; 
they  are  not  bottomed  in  that,  without  which  the  facts  which 
they  are  offered  to  prove  cannot  legally  be  established  before  a  jury; 
namely,  they  are  mere  representations,  and  not  upon  oath;  and  are 
therefore  inadmissible. 

ROBSON  V.  THE  HUNTRESS,  (1851,  U.  S.) 

2  Wall.  Jr.  .59. 

Grier,  Circuit  Court. 

(Extract)  The  right  of  a  consul  to  intervene  on  behalf  of  citi- 
zens of  his  own  country  who  are  absent  but  interested,  seems  too  well 
established  in  practice  to  be  doubted.  He  cannot  intervene  for  his 
sovereign  when  such  sovereign  has  a  minister  or  ambassador  resident 
in  the  country.  Regularly  he  should  state  for  whom  he  intervenes, 
more  fully  than  is  set  forth  in  this  bill.  But  this  defect  may  be 
remedied  as  suggested,  and  carried  out  by  the  final  decree. 

ROGERS  V.  AMADO,  (1847,  U.  S.) 

Newb.  400;   Fed.  Casps  12,005. 
MrCalrh,  District  Court. 

[IJ.  S.  consul  has  no  authority  to  grant  any  license  or  permit  the 
exemption  of  a  vessel  of  an  enemy  from  capture  and  confiscation. — 
Ed.] 

ROTH,  IN  RE,  (1883,  U.  S.) 

1.5  Fed.  506. 

Brown,  District  Court. 

(Extract)     In  the  complaint  presented  to  the  commissioner  in 

320 


CONSULAR  CASES 

this  case  the  complainant  makes  oath  that  he  is  the  consul  of  the  Swiss 
confederation  at  this  port,  duly  recognized  as  such  by  the  president  of 
the  United  States;  and,  in  conclusion,  the  complainant,  as  such  con- 
sular agent,  and  "in  the  name  of  the  Swiss  confederation,  requests  a 
warrant,  etc.,  for  the  delivery  of  said  Roth  to  the  authorities  of  the 
Swiss  confederation,  in  accordance  with  the  terms  of  said  treaty." 

ROWE  V.  THE  BRIQ,  (1818,  U.  S.— Spain) 

1  Mas.  372;  Fed.  Cases  12,093. 
Story,  Circuit  Court. 

[Spanish  consul  at  Boston  intervenes  in  a  matter  of  salvage  and 
his  action  seems  to  be  taken  as  a  matter  of  course.] 

(Extract)  A  claim  was  interposed  by  the  Spanish  consul  for  the 
property,  as  belonging  to  certain  Spanish  subjects  unknown. 

SACHEM,  THE,  See  Hill  v.  The  Sachem. 

SAGORY  V.  WISSMAN,  (1868,  U.  S.) 

2  Ben.  240;  Fed.  Cases  12,217. 
Blatchford,  District  Court. 

[State  courts  have  jurisdiction  over  suits  brought  by  a  consul. — 
Ed.] 

ST.  JOHN  V.  CROEL,  (1843,  U.  S.) 

5   Hill   573. 

Cowen,  Supreme  Court,  New  York. 

By  the  court.  COWEN,  J.  The  learned  judge  thought  the 
question  in  this  case  of  so  much  importance  as  to  call  for  a  discussion 
in  writing,  with  which  I  have  been  furnished,  (a)  I  think  he  has 
shown  that  the  proof  of  authority  from  P.  and  H.  J.  St.  John  was 
sufficient.  I  will  only  add,  that  if  there  can  be  any  question  whether 
the  powers  of  attorney  be  within  the  1  R.  S.,  747,  2d  ed.,  sec.  4,  sub.  3, 
and,  therefore,  the  subject  of  acknowledgement  before  foreign  con- 
suls, the  doubt  is  removed  by  2  Id.,  325,  sec.  74,  2d  ed. 

Motion  denied. 

(a)  The  following  is  an  extract  from  the  opinion  of  Judge  Gridley,  and  the 
only  part  of  it  •which  relates  to  the  objections  urged  by  the  defendant's  counsel 
on  the  appeal: 

"It  is  not  denied  by  the  defendant's  counsel  that  the  revised  statutes  au- 
thorize the  execution  of  deeds  to  be  proved,  etc.,  before  consuls  residing  in  foreign 
countries;  1  B.  S.,  747,  2d  ed. ;  but  it  is  insisted  that  the  consular  seal  does  not 
prove  itself,  except  in  certain  cases  specially  provided  for  by  act  of  congress. 

321 


CONSULAR  CASES 

See,  act  of  cong.  of  1792,  ch.  24,  and  of  1803,  ch.  62.  In  support  of  this  posi- 
tion I  am  referred  to  Conk.  Tr.,  258,  259;  2  Cr.,  184,  239;  1  Dowl,  &  R.,  324; 
Story  Confl.  of  L.,  530;  3  East,  221;  17  Johns.,  272;  1  Wend.,  131;  2  Paige,  620, 
and  Petersd.  Abr.,  tit.  Consul.  I  have  no  doubt  that  the  general  principle  con- 
tended for  by  the  defendant's  counsel  in  relation  to  the  necessity  of  proving  con- 
sular seals,  is  correctly  stated,  and  that,  if  it  were  not  for  the  fact  that  the 
provisions  of  the  revised  statutes  respecting  the  proof  of  deeds  in  foreign  coun- 
tries made  this  case  an  exception  to  the  general  rule,  the  objection  would  be 
fatal.  1  K.  S.,  747,  2d  ed.  But  in  construing  this  statute  it  should  be  borne 
in  mind  that  the  object  of  its  enactment  was  to  provide  a  convenient  mode  of 
proving  the  execution  of  deeds  by  grantors  residing  in  foreign  countries,  and 
that  the  construction  which  dispenses  with  evidence  of  the  official  character  of 
the  person  taking  the  proof  and  of  the  genuineness  of  the  certificate,  best  com- 
ports with  the  design  of  the  law  makers.  True,  consuls  are  officers  of  the  gen- 
eral government;  but  our  statute  adopts  them  as  state  officers  for  the  particular 
purposes  therein  mentioned. 

The  3d  subdivision  of  the  4th  section  of  the  statute  1  R.  S.,  747,  2d  ed.  under 
which  the  powers  in  question  were  proved,  was  enacted  in  1829,  and  clearly  with 
the  intent  of  increasing  the  facilities  of  proving  deeds  of  real  estate  in  foreign 
countries.  The  provision  does  not  even  require  a  seal;  and  it  may  be  doubted 
whether  it  is  at  all  subject  to  the  7th  section  of  1  R.  S.,  747,  which  requires  a 
seal,  and  points  out  the  mode  of  authenticating  certificates.  But  when  the  7th 
section  was  enacted,  the  3d  subdivision  of  the  4th  section  was  not  in  existence) 
and  it  will  be  seen  that  it  provides  for  a  mode  of  authentication  applicable  to 
the  cases  embraced  within  it,  by  declaring  that  the  acknowledgment  or  proof 
'certified  by  them  (the  officers  thereinbefore  named)  respectively,  shall  be  as 
valid  and  effectual  as  if  taken  before  one  of  the  justices  of  the  supreme  court 
of  this  state.' 

Jurats  and  certificates  of  acknowledgment  are  exceptions  to  the  general  rule 
requiring  evidence  of  the  official  character  and  signature  of  the  person  before 
whom  the  deposition  or  instrument  purports  to  have  been  sworn  or  acknowledged. 
The  learned  annotators  upon  Phillips'  Evidence  say:  'There  are  many  cases 
in  the  law,  not  only  of  depositions,  but  also  of  acknowledgments  and  certificates, 
which  are  made  proof  per  se;  in  all  which  cases  the  person  officiating  is  re- 
garded ag  a  quasi  officer  of  the  court;  and  his  act  is  recognized  of  course,  like  the 
return  of  a  sheriflF,  etc.  Courts  take  what  is  called  judicial  notice,  that  the  per- 
son assuming  to  act  has  the  proper  authority.'  Cowen  &  H.  Notes  to  Phil.  Ev., 
p.  628.  At  page  1247  of  the  same  book  it  is  laid  down  that  'where  the  of- 
ficer taking  the  same  (the  acknowledgment  or  proof)  styles  himself  such  an  of- 
ficer as  is  authorized,  that  will  be  prima  facie  evidence  of  the  fact  of  his  being 
so.' 

My  conclusion  is,  that  the  proof  of  authority  to  commence  the  suit  is  now 
perfect  as  to  all  the  plaintiffs,  and  that  the  order  to  stay  proceedings  should  be 
revoked. ' ' 

ST.  LUKE'S  HOSPITAL  v.  BARCLAY,  (1855,  U.  S.) 

3  Blatchf.  259;  Fed.  Casea  12,241. 

Betts,  Circuit  Court. 

(265)      (Extract)     The  defendants,  being  aliens,  are  amendable 
to  the  jurisdiction  of  the  circuit  court  in  a  suit  in  favor  of  citizens, 

322 


CONSULAR  CASES 

and  their  consular  character  exempts  them  only  from  the  jurisdiction 
of  state  courts.  The  act  of  congress  gives  to  the  district  courts  of 
the  United  States  jurisdiction  in  civil  actions,  in  suits  against  con- 
suls, exclusively  only  of  the  state  courts.  By  the  law  of  nations,  con- 
suls are  subject  to  the  ordinary  jurisdiction  of  the  tribunals  of  the 
country  to  which  they  are  accredited.  (1  Kent's  Comm.,  43,  45; 
Wheat.  Law  of  Nations,  293,  §  22;  11  Wheat.,  469,  note).  There 
seems,  therefore,  to  be  no  legal  impediment  to  the  application  of  the 
eleventh  section  of  the  judiciary  act  of  1789  (1  U.  S.  Stat,  at  Large, 
78)  to  actions  by  citizens  against  consuls,  in  the  circuit  courts  of  the 
United  States. 

On  both  points,  in  my  opinion,  this  court  has  cognizance  of  this 
case,  and  the  injunction  prayed  for  ought  to  issue,  and  be  enforced 
until  the  further  order  of  the  court. 

Subsequently,  Bunch  pleaded  to  the  jurisdiction  of  the  court, 
that,  at  the  commencement  of  the  suit,  he  was  the  British  consul  at 
Charleston,  S.  C,  and  Barclay  was  the  British  consul  at  New  York, 
both  of  them  admitted  by  the  president,  and  that  they  ought  to  be 
sued  in  the  supreme  court  of  the  United  States,  or  in  some  district 
court  of  the  United  States,  and  not  elsewhere.  After  argument  be- 
fore Nelson  and  Betts,  J.  J'.,  by  Marshall  S.  Bidwell,  for  the  plain- 
tiffs, and  Charles  Edwards,  for  Bunch,  the  court  (October  2d,  1855) 
overruled  the  plea,  with  costs. 

SALOMONI,  THE,  (1886,  U.  S.— Italy) 

29  Fed.  Eep.  534. 
Speer,  District  Court. 

[Court  declared  that  in  the  matter  of  wages  Italian  treaty  of 
September  18,  1878,  art.  11,  gave  the  consul  jurisdiction,  but  had  the 
libel  contained  a  prayer  for  the  injury  caused  by  the  assault  the  court 
might  have  taken  jurisdiction. — Ed.] 

SARTORI  V.  HAMILTON,  (1832,  U.  S.) 

1  Green  107;   13  N.  J.  Law  107. 
Ford,  Supreme  Court,  New  Jersey. 

(108)  FORD,  J.  The  plaintiff  was  accredited  to  the  govern- 
ment of  the  United  States  as  a  foreign  consul.  Being  sued  in  an 
action  of  debt  in  the  court  for  trial  of  small  causes,  he  plead  to  the 
jurisdiction  of  the  justice,  that  he  was  suable  only  in  the  district  court 
of  the  United  States,  according  to  the  act  of  congress.  The  justice, 
however,  tried  the  cause  and  rendered  judgment  against  him  as  the 
maker  of  a  promissory  note. 

If  the  act  of  congress  be  of  any  authority,  it  takes  away  the 

323 


CONSULAR  CASES 

jurisdiction  of  tlie  justice,  and  of  this  court  like\\ase,  over  a  consul. 
Its  words  are  these:  "The  district  court  of  the  United  States,  shall 
have  jurisdiction,  exclusively  of  the  courts  of  the  several  states,  of  all 
suits  agrainst  consuls."  Acts  of  congress.  1  vol.  54,  sec.  9.  These 
words  exclude  state  courts  from  civil  jurisdiction  over  foreign  consuls. 
But  the  power  to  deprive  a  state  of  the  right  of  administering 
justice  to  its  citizens,  is  said  not  to  be  taken  away  by  the  constitution 
of  the  United  States,  and  therefore  no  act  of  congress,  can  do  it.  The 
words  of  the  constitution  are,  3d  art.  see.  2,  "The  judicial  power  of 
the  United  States  shall  extend  to  all  cases  affecting  ambassadors  and 
consuls."  They  may  have  concurrent  jurisdiction,  it  is  said;  but  the 
jurisdiction  which  state  courts  had,  before  the  adoption  of  the  con- 
stitution, not  being  taken  away  by  express  words,  must,  it  is  said, 
neces.sarily  remain;  for  by  the  10th  amendment,  "the  powers  not  pro- 
hibited by  the  constitution  to  the  states,  are  reserved  to  them;"  and 
therefore  that  an  act  of  congress  prohibiting  this  jurisdiction  to  a 
state,  is  unconstitutional  and  void.  But  on  the  other  hand,  if  state 
jurisdiction  is  excluded  by  a  fair  and  necessary  (109)  implication 
of  the  words  of  the  constitution,  such  implication  is  as  good  as  ex- 
press words.  Now  the  exclusion  seems  to  be  fairly  and  necessarily 
implied.  The  constitution  extends  the  judicial  power  of  the  United 
States  to  "ambassadors  and  consuls"  both  alike;  it  does  not  distin- 
guish between  them  as  to  jurisdiction,  but  places  them  imder  one 
rule.  If  it  had  intended  different  rules  for  the  two  persons  of  am- 
bassadors and  consuls,  it  would  have  said  so.  If  we  disjoin  and  separ- 
ate under  two  rules  what  are  thus  imited  under  one  and  the  same, 
we  do  arbitrary  violence  to  the  constitution.  Now  that  the  judicial 
power  of  the  United  States  over  ambassadors  belongs  to  them  exclu- 
sively, is  not  denied,  and  by  the  same  rule,  (there  being  but  one  rule) 
in  the  con.stitution,  it  must  be  exclusive  over  consuls  also.  One  is 
made  kno\\T3  by  the  other.  Again,  The  1st  Art.  8th  section  em- 
powers congress  "to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  powers  vested  by  the  constitu- 
tion in  the  government  of  the  United  States."  One  of  them  is  the 
power  of  managing  our  public  relations  with  the  rest  of  the  world 
without  the  interference  of  any  state;  another  is,  "to  regulate  com- 
merce with  foreign  nations."  For  the  exercise  of  these  powers  they 
are  responsible  to  the  nation  and  to  foreign  powers.  Now  a  consul  is 
a  commercial  agent,  with  public  functions,  accredited  to  the  national 
government  by  a  foreign  power  and  is  admitted  to  be  under  the  par- 
ticular protection  of  the  law  of  nations.  Mart.  Lib.  4ch.  3,  sec.  8. 
Therefore  any  maltreatment  of  the  consul  of  a  foreign  power,  is  not 
only  a  justifiable  cause  of  war,  but  has  often  occasioned  wars  in  the 

324 


CONSULAR  CASES 

history  of  nations.  No  individual  state  is  answerable  for  the  treat- 
ment a  foreign  consul  may  receive ;  the  national  government  is  answer- 
able alone;  and  it  seems  indispensably  necessary  to  its  responsibility, 
that  it  should  have  exclusive  jurisdiction  over  them.  How  could  it 
be  answerable  for  laws  affecting  consuls,  and  for  the  execution  of  those 
laws  over  which  it  had  no  control  ?  This  reasonable  and  necessary  im- 
plication in  the  constitution  was  adopted  by  the  very  first  congress  in 
the  year  1789,  so  that  its  allowance  was  coeval  with  the  government; 
it  has  been  maintained  under  every  administration,  and  impliedly 
assented  to  by  every  state  in  the  Union  for  the  last  forty  years.  It 
has  received  the  highest  judicial  sanction  in  a  neighboring  state,  and 
(110)  is  approved  by  the  most  eminent  of  our  American  civilians.  1 
Kent's  Com.  44.  But  if  state  courts  are  ousted  of  jurisdiction,  it  is 
argued  that  we  must  dismiss  this  present  certiorari,  for  want  of  power 
to  take  cognizance  of  the  present  matter.  This  is  not  a  fair  inference 
from  the  premises.  We  have  no  jurisdiction,  nor  has  the  justice  any; 
and  it  is  our  duty  to  restrain  inferior  tribunals  and  keep  them  from 
exceeding  their  legal  jurisdiction.  We  exercise  no  jurisdiction  over 
consuls  ourselves,  nor  suffer  inferior  tribunals  to  do  it. 

On  account  therefore  of  its  being  a  fair  and  necessary  implica- 
tion in  the  constitution,  adopted  at  the  commencement  of  the  govern- 
ment, and  acquiesced  in  to  the  present  time,  I  feel  bound  to  say  that 
the  justice  had  no  jurisdiction,  and  that  the  judgment  must  be  re- 
versed. 

Judgment  reversed. 

SAUNDERS  V.  THE  VICTORIA,  (1854,  U.  S.) 

Fed.  Cases  12,377. 

Per  Curiam,  District  Court. 

(Extract)  The  court  having  granted  leave,  Mr.  Rush  then  read 
the  following  paper,  signed  by  Mr.  Mathew :  "To  the  honorable  John 
K.  Kane,  judge  of  the  district  court  of  the  U.  S.,  in  and  for  the 
Eastern  District  of  Pennsylvania.  Saunders  et  al.  vs.  The  British 
Brig  'Victoria'  In  Admiralty.  In  the  above  suit,  instituted  in  this 
honorable  court,  by  three  of  the  crew  of  a  British  vessel,  against  said 
vessel  and  her  master,  on  a  claim  for  wages,  the  undersigned,  her 
Britannic  majesty's  consul  for  Pennsylvania,  residing  at  Philadel- 
phia, begs  leave  respectfully,  to  enter  this  his  dissent  to  the  crew  being 
permitted  to  sue  in  a  court  of  the  United  States.  First,  Because  the 
brig  Victoria,  on  board  of  which  the  libellants  and  respondents  sailed, 
is  a  British  vessel,  and  the  respondent,  her  commander,  a  British  sub- 
ject. Second.  Because  an  investigation  of  the  cause  of  suit,  would 
call  in  question  official  acts  and  conduct  of  a  British  functionary  in 

325 


CONSULAR  CASES 

regard  to  British  subjects,  which  the  undersigned  has  already  disposed 
of  to  the  best  of  his  judgment ;  respecting  which  he  is  responsible  only 
to  his  o^^■n  government;  and  with  regard  to  men,  master  and  sailors, 
all  residents  at  Nassau,  where  there  is,  as  in  all  British  colonies,  an 
adequate  court  of  appeal. 

(Signed)  George  B.  Mathew,  Consul. 

"Whereupon  the  court  referred  the  consul  to  the  cases  of  Weiberg 
V.  The  St.  Oloff  [Case  No.  17,357],  and  the  Golubchick,  in  1  W.  Rob. 
Adm.  143,  as  illustrating  the  law  of  the  admiralty  jurisdiction  in 
cases  of  foreign  vessels;  but  upon  a  view  of  the  admissions  contained 
in  the  libel,  that  the  contract  of  shipment,  if  violated  at  all  by  the  re- 
spondent, had  been  so  violated  at  a  time  when  recourse  might  have 
been  had  before  a  British  tribunal,  and  that  the  parties  are  about  to 
pass  within  a  British  jurisdiction  again,  and  might  therefore  have  re- 
coiu^e  to  the  tribimals  of  their  own  country  within  a  reasonable  time, 
and  without  loss  of  proofs,  concurred  with  her  Britanic  majesty's 
consul  in  the  views  expressed  by  him;  and  thereupon,  made  the  fol- 
lowing order :  And  now,  2d  May,  1854,  it  appearing  to  the  court,  that 
the  vessel  is  a  British  vessel,  and  the  seamen  British  subjects,  and 
that  she  is  now  about  to  sail  to  a  British  port,  where  redress  may  be 
had  by  the  libellants,  if  entitled  thereto ;  it  is  upon  the  dissent  of  the 
British  consul  to  further  proceedings  being  had  in  this  court,  said 
dissent  being  now  filed,  ordered  that  this  libel  be  dismissed. 

SAVAGE  v.  BIRCKHEAD,  (1838,  U.  S.) 

20  Pick.  172. 

Shaw,  Supreme  Judicial  Court  of  Massachusetts. 

(Extract)  The  court  are  of  opinion,  that  an  American  consul, 
residing  in  a  foreign  country,  and  who  has  been  duly  accredited  there, 
is  a  magistrate,  authorized  to  take  affidavits  and  depositions  in  such 
foreign  state  or  country,  within  the  mieaning  of  the  rules  of  this  court, 
directing  commissioners  to  take  depositions,  and  that  the  depositions 
taken  in  this  case  by  Mr.  Baker,  the  American  consul,  in  the  absence  of 
the  special  commissioners,  to  whom  it  was  first  addressed,  was  duly 
and  properly  taken.  Brancker  v.  Parker,  in  Suffolk,  March  term 
1837. 

SCANLAN  V.  WRIGHT,   (1833,  U.  S.) 

]3  Pick.  .'323. 

Shaw,  Supreme  Court  of  Massachusetts. 

[Consul  competent  to  take  an  acknowledgment  of  a  deed  of  land. 
Derives  his  authority  from  both  governments. 
Is  a  magistrate. — Ed.] 

326 


CONSULAR  CASES 

(528)  (Extract)  The  next  question  is,  whether  this  deed  was 
rightly  admitted  to  be  registered  in  this  country,  it  being  objected 
that  it  was  not  acknowledged  by  the  grantor,  conformably  to  the 
statute.  This  statute  requires  that  the  deed  be  ''acknowledged  by  the 
grantor,  before  a  justice  of  peace  in  this  state,  or  before  a  justice 
of  peace  or  magistrate  of  some  other  of  the  United  States,  or  in 
any  other  state  or  kingdom  wherein  the  grantor  or  vendor  may  reside, 
at  the  time  of  making  and  executing  the  deed."  This  deed  purports 
to  have  been  acknowledged  before  D,  Strobel,  Esq.,  consul  of  the 
United  States  for  the  city  of  Bordeaux  in  France,  Bishop  Cheverus, 
the  grantor,  then  residing  at  that  place.  The  question  is,  whether  an 
American  consul  is  a  magistrate,  within  the  meaning  of  the  statute. 

It  is  difficult  to  fix  any  definite  meaning  to  the  word  "magis- 
trate," a  generic  term  importing  a  pubhc  officer,  exercising  a  public 
authority ;  it  was  intended,  we  think,  to  use  a  term  sufficiently  broad 
to  indicate  a  class  of  officers,  exercising  an  authority  similar  to  that  of 
justices  of  peace  in  our  own  state,  or  as  nearly  so  as  the  difference  in 
the  forms  of  their  governments  and  institutions  would  permit.  It 
was  to  provide  for  the  execution  and  acknowledgments  of  deeds,  in  all 
foreign  countries.  It  may  be  remarked,  as  a  circumstance  of  some 
consideration,  that  the  acknowledgment  is  to  be  before  some  justice  of 
peace  or  magistrate  in  any  other  state  or  kingdom,  not  of  any  other 
state. 

There  is  nothing  to  indicate  what  kind  of  magistrate  was  in- 
tended, except  the  nature  of  the  act  to  be  done  and  the  connection 
in  which  the  term  is  used.  The  act  is  a  ministerial  one;  it  is  to  be 
before  a  justice  of  peace  or  magistrate.  The  maxim  noscitur  a  sociis 
applies.  It  must  then  be  a  ministerial  officer,  exercising  like  powers 
with  those  of  a  justice  of  peace  in  this  commonwealth,  when  acting 
in  his  ministerial  capacity.  Such  an  officer,  we  think,  is  a  consul  in 
a  foreign  country,  at  least  in  respect  to  the  persons  and  interests  of 
the  country  from  which  he  is  sent.  An  American  consul  in  France, 
derives  his  authority,  in  effect,  from  both  governments;  he  has  his 
commission  from  the  United  States,  but  his  exequatur  from  France; 
and  it  is,  in  truth,  in  virtue  of  (529)  the  authority  vested  in  him  by 
the  latter,  that  he  exercises  any  official  authority  within  the  territorial 
limits  of  the  latter.  The  Bello  Corrunes,  6  Wheat.  156,  note;  1 
Chitty's  Com.  Law,  48. 

This  view  is  somewhat  confirmed  by  the  statute  law  of  the  United 
States;  Act  of  Congr.  1792,  c.  24,  sect.  2;  which  provides,  that  con- 
suls shall  have  right  in  the  posts  or  places  to  which  they  are  ap- 
pointed, of  receiving  the  protests  and  declarations  which  masters,  &c., 
who  are  citizens  of  the  United  States,  may  choose  to  make  there,  and 

327 


CONSULAR  CASES 

also  such  as  any  foreigner  may  choose  to  make  before  them,  relative  to 
the  personal  interest  of  any  citizens  of  the  United  States.  The  same 
statute,  sect.  9,  provides,  that  the  specific  enumeration  of  powers 
therein  expressed,  shall  not  be  deemed  to  exclude  such  others  as 
result  from  the  nature  of  the  office.  An  officer,  authorized  by  the  con- 
currence of  both  governments  to  exercise  such  powers  in  France,  is, 
we  think,  a  magistrate  competent  to  take  in  France,  and  authenticate 
by  his  official  act,  the  declaration  of  the  grantor  of  a  deed,  that  he 
has  executed  the  same  freely,  as  his  act  and  deed,  and  that  such 
acknowledgment  so  authenticated  is  sufficient  to  warrant  the  register 
of  deeds  in  this  commonwealth  to  record  it. 

SCHTJNIOR  V.  RUSSELL,  (1892,  U.  S.) 

83   Texas  83. 

Gaines,  Texas  Supreme  Court. 

(88)  (Extract)  The  depositions  in  this  case  sought  to  be  sup- 
pressed were  taken  in  the  city  of  Camargo  by  an  officer  who  gave  his 
oflScial  title  as  "consular  agent  of  the  United  States  at  Camargo, 
Mexico."  In  authentication  of  his  act  he  used  a  seal,  which  con- 
tained the  words,  "United  States  Commercial  Agency."  It  is  claimed 
that  the  seal  of  the  United  States  commercial  agency  is  not  the  seal 
of  this  officer.  Section  1674  of  the  revised  statutes  of  the  United  States 
contains  this  language : 

"1.  'Consul-general,'  'consul,'  and  'commercial  agent'  shall  be 
deemed  to  denote  full,  principal,  and  permanent  consular  officers,  as 
distinguished  from  subordinates  and  substitutes. 

"2.  'Deputy  consul'  and  'consular  agent'  shall  be  deemed  to 
denote  consular  officers  subordinate  to  their  principals,  exercising 
powers  and  performing  duties  within  the  limits  of  their  consulates  or 
commercial  agencies  respectively,  the  former  at  the  same  ports  or 
places,  and  the  latter  at  points  and  places  different  from  those  at 
which  such  principals  are  located  respectively. 

"3.  'Vice-consuls'  and  'vice-commercial  agents'  shall  be  deemed 
to  denote  con.sular  officers  who  shall  be  substituted  temporarily  to 
fill  the  places  of  consuls-general,  consuls,  or  commercial  agents,  when 
they  shall  be  temporarily  absent  or  relieved  from  duty. 

"4.  'Consular  officer'  shall  be  deemed  to  include  consul-general, 
consuls,  commercial  agents,  vice-consuls,  vice-commercial  agents,  and 
none  others." 

A  consul  is  defined  to  be,  "a  commercial  agent  of  a  country  re- 
siding in  a  foreign  seaport,  whose  duty  it  is  to  support  commercial 
intercourse  of  the  state,  and  especially  of  the  individual  citizens." 
3  Am.  and  Eng.  Encyc.  of  Law,  764.     From  this  definition,  as  well 

328 


CONSULAR  CASES 

as  the  language  of  the  statute,  we  deduce  these  conclusions:  That  a 
consul  and  a  commercial  agent  are  invested  with  the  same  powers  and 
duties;  that  though  nominally  different,  the  office  of  each  is  substan- 
tially the  same  as  that  of  the  other,  and  that  the  name  is  determined 
by  the  relative  (89)  importance  of  the  port  to  which  the  officer  is 
assigned.  It  is  to  be  noted  that  the  second  subdivision  of  the  section 
of  the  revised  statutes  of  the  United  States  hereinbefore  quoted  pro- 
vides, that  deputy  consuls  are  subordinates  who  perform  their 
duties  at  the  same  port  as  their  principals,  and  that  consular  agents 
are  in  effect  deputies  who  act  at  a  place  other  than  that  at  which 
their  principals  are  located.  In  the  first  subdivision  commercial 
agents  are  declared  to  be  principal  officers,  and  it  is  thereby  indi- 
cated that  they  might  have  deputies.  It  would  seem  that  if  a  com- 
mercial agent  should  be  placed  in  charge  of  a  number  of  ports  or 
places,  a  deputy  might  be  necessary  at  places  where  he  could  not  dis- 
charge the  duties  of  the  office  in  person.  But  the  revised  statutes  do 
not  expressly  mention  a  deputy  commercial  agent  or  the  agent  of 
that  officer.  The  agent  of  a  commercial  agent  by  being  called  a 
commercial  agent  would  not  have  been  distinguished  from  his  prin- 
cipal, and  we  therefore  incline  to  the  opinion  that  it  was  intended  that 
such  a  deputy  when  acting  at  a  place  different  from  that  of  his  prin- 
cipal was  intended  to  be  known  as  a  consular  agent.  He  is  such  in 
fact,  and  it  is  no  misnomer.  It  is  evident  from  the  certificate  to  the 
depositions  in  this  case  that  the  officer  was  an  agent  in  a  commercial 
agency,  and  we  infer  that,  under  the  official  title  of  consular  agent, 
he  was  acting  as  deputy  of  the  commercial  agent  of  a  consular  district. 
The  seal  of  the  United  States  commercial  agency  would  indicate  that 
such  agency  existed  at  Camargo,  and  it  would  seem  that  a  consular 
agent  at  that  point  must  have  been  subordinate  to  the  commercial 
agent  in  charge  of  the  district  in  which  Camargo  was  situate.  But 
at  all  events,  it  is  to  be  presumed  that  the  officer  who  took  the  deposi- 
tion did  his  duty  and  affixed  the  proper  seal  in  authentication  of  his 
acts;  and  from  the  lights  before  us  we  can  not  say  that  the  seeming 
discrepancy  between  the  seal  and  the  title  of  the  officer  is  sufficient  to 
overcome  that  presumption.  On  the  contrary,  without  the  aid  of  the 
presumption,  we  are  inclined  to  the  opinion  that  we  should  be  con- 
strained to  hold  that  the  seal  was  a  proper  one. 

SCOTT  V.  KOBE,  (1900,  U.  S.) 

108  Wis.  239;  84  N.  W.  181. 

Winslow,  Supreme  Court  of  Wisconsin. 

(241)  WINSLOW,  J.   (Extract)  It  is  insisted  by  the  appellant 
that  the  state  courts  have  no  jurisdiction  of  this  action,  because  the 

329 


CONSULAR  CASES 

defendant  is  a  ^^ce  consul  of  Sweden  and  Norway  and  can  only  be 
sued  in  the  courts  of  the  Imited  States.  The  defendant  was  a  trading 
consul,  the  action  here  brought  is  one  which  arises  out  of  his  busi- 
ness, and  the  principle  of  international  law  is  that  a  trading  consul  is 
liable  to  the  ordinary'  processes  of  (242)  law  in  all  that  concerns  his 
trade,  in  the  same  way  as  a  native  merchant.  Coppell  v.  Hall.  7  "Wall. 
542.  The  defendant  is  therefore  amenable  to  the  jurisdiction  of  the 
state  courts,  unless  that  jurisdiction  has  been  taken  away  by  the  con- 
stitution and  laws  of  the  United  States, — for  the  state  courts  have 
jurisdiction  unless  it  has  been  taken  away;  the  United  States  courts 
have  no  jurisdiction  imless  it  has  been  given.  By  the  constitution  of 
the  United  States,  the  courts  of  the  United  States  were  vested  with 
judicial  power  extending  to  "all  eases  affecting  ambassadors,  other 
public  ministers,  and  consuls,"  and  in  all  such  cases  the  supreme  court 
was  given  ''original  jurisdiction."  Const.  U.  S.  art.  Ill,  sec.  2.  A 
grant  of  original  jurisdiction  is  not  a  grant  of  exclusive  jurisdiction ; 
hence  there  is  nothing  in  the  constitutional  clauses  just  cited  which 
deprives  the  state  courts  of  jurisdiction.  Bors  v.  Preston,  III  U.  S, 
252.  By  the  judiciary  act  of  1789,  however  (R.  S.  of  U.  S.  1874,  sec. 
711.  par.  8),  exclusive  jurisdiction  was  vested  in  the  courts  of  the 
United  States  over  "all  suits  or  proceedings  against  ambassadors  or 
other  public  ministers..  . .  or  against  consuls  or  vice  consuls,"  Under 
this  act  it  was  well  settled  that  the  jurisdiction  of  the  United  States 
courts  was  exclusive.  Davis  v.  Packard,  7  Pet.  281 ;  Valarino  v. 
Thompson,  7  N,  Y.  576.  This  paragraph  was  repealed  by  ch.  80  of 
the  United  States  statutes  at  Large,  passed  by  the  43d  congress,  ap- 
proved February  18,  1875,  so  that  there  is  now  no  constitutional  or 
statutory  provision  vesting  exclusive  jurisdiction  of  such  causes  in  the 
United  States  courts.  In  the  absence  of  such  provision,  or  of  any 
treaty  provision,  the  jurisdiction  of  the  state  courts  seems  unquestion- 
able. The  same  result  was  reached  in  "Wilcox  v.  Luco,  118  Cal.  639, 
45  L.  R.  A.  579 ;  and  De  Give  v.  Grand  Rapids  F.  Co.  94  Ga.  605. 

SEIDEL  v.  PESCHKAW,  (1859,  U.  S.) 

27  N.  J.  Law.  427;  .3  Dutch.  427. 

Haines,  Supreme  Court  of  New  Jersey. 

(429)  HAINES,  J.  (Extract)  Another  objection  to  the  affidavit 
of  Peschkaw  is,  that  it  was  not  made  before  a  person  having  compe- 
tent authority  to  administer  such  an  oath. 

It  purports  to  have  been  made  at  the  city  of  Vienna,  in  the  em- 
pire of  Austria,  before  Edward  C.  Stiles,  the  consul  of  the  United 
States  at  that  place,  tested  by  the  signature  and  tbe  consulate  seal. 

330 


CONSULAR  CASES 

The  objection  is,  that  a  consul  of  the  United  States  has  no  author- 
ity to  administer  an  oath. 

The  act  of  10th  March,  1853,  (Nix.  Dig.  132,  pi.  57,)  authorizes 
the  administration  of  an  oath  or  affirmation  to  hold  to  bail,  by  "any 
ambassador,  public  minister,  charge  of  affairs,  or  other  representative 
of  the  United  States,  for  the  time  being,  at  any  foreign  court  or  gov- 
ernment. 

The  question  presented  is,  whether  a  consul  of  the  United  States 
at  a  foreign  court  or  government  is  a  representative  of  the  United 
States. 

A  consul  is  a  mercantile  agent  of  the  sovereignty  by  which  he  is 
appointed  to  protect  the  commercial  interests  of  its  citizens  or  subjects 
in  a  foreign  state.  By  virtue  of  his  office,  he  is  clothed  only  with 
authority  for  commercial  purposes.  He  is  not  to  be  considered  as  a 
minister  or  diplomatic  agent  of  his  government,  intrusted  with  au- 
thority to  represent  it  in  negotiations  with  foreign  states  or  to  vin- 
dicate its  prerogatives.  1  Kent 's  Com.  43 ;  3  Wheaton  445,  In  re  The 
Annie. 

(430)  He  has  not  the  immunities  of  an  ambassador,  but  in  civil 
and  in  criminal  cases  is  subject  to  the  local  laws,  in  the  same  man- 
ner as  other  foreign  residents  owing  temporary  allegiance  to  the 
state  to  which  he  is  accredited. 

But  consuls  are  agents  of  their  governments;  and  in  the  United 
States,  it  belongs  exclusively  to  the  president,  by  and  with  the  ad- 
vice and  consent  of  the  senate,  to  appoint  consular  officers  to  such 
places  as  he  and  they  may  deem  to  be  meet.  They  are  officers  created 
by  the  constitution  and  law  of  nations,  and  not  by  act  of  congress. 
7  Opinion  on  the  Constitution  242. 

The  persons  so  appointed  are  responsible  for  their  official  deport- 
ment to  the  United  States,  and  are  required  to  enter  into  bonds,  with 
sureties  for  the  faithful  discharge  of  their  duties.  For  any  neglect  or 
malfeasance  in  office  they  are  liable  to  indictment  for  the  offence, 
and  also,  upon  their  official  bonds,  for  all  damages  caused  thereby,  to 
be  sued  for  in  the  name  of  the  United  States,  to  the  use  of  the  persons 
injured. 

Their  compensation  is  by  salary,  paid  by  the  United  States,  or 
by  fees,  according  to  the  rates  established  by  act  of  congress. 

A  consul  must  be  recognized  by  the  government  to  which  he  is 
sent,  and  authorized  to  exercise  his  official  functions  within  its  terri- 
tory. His  exequatur,  granting  such  authority,  may  be  withdrawn,  and 
his  functions  suspended  at  the  pleasure  of  the  executive  of  that  gov- 
ernment. He  is  not,  in  general,  responsible  personally  for  contracts 
made  in  his  official  capacity  on  account  of  the  government  he  repre- 
sents.   Jones  V.  Le  Tombe,  3  Dallas  384. 

331 


CONSULAR  CASES 

In  his  official  acts,  he  represents  the  United  States. 

On  the  arrival  of  a  vessel  from  the  United  States  at  his  port,  the 
commander  is  required  to  deposit  with  the  consul  his  sea  letter  and 
register,  under  a  penalty  of  $500,  and  they  are  to  be  returned  to  him 
only  on  his  producing  to  the  consul  his  clearance  from  the  proper 
officer  of  the  (431)  port,  and  on  compliance  with  the  provisions  of 
the  acts  regulating  the  conduct  of  such  officers  in  foreign  ports.  Act 
of  Congress,  28th  February,  1803;  Harrison  v.  Vose,  9  Howard  372. 

He  is  to  protect  the  seamen  of  the  United  States  discharged  in  a 
foreign  port,  and  receive  from  the  master  three  months'  wages,  be- 
sides the  wages  due  at  the  time  of  their  discharge,  to  provide  for  the 
return  home  of  such  as  desire  to  return,  and  for  the  support  of  such 
as  may  be  destitute. 

He  is  to  hear  complaints  of  seamen  against  the  master.  He  is  to 
reclaim  deserters,  and  to  inquire  into  the  seaworthiness  of  ships.  He 
is  to  take  measures  for  the  preservation  of  stranded  vessels  of  the 
United  States  and  their  cargoes.  He  is  to  take  possession  of  the 
personal  effects  of  such  citizens  of  the  United  States  as  shall  die  within 
his  consulate  unrepresented,  and  to  administer  the  same  by  paying 
the  local  debts,  and  remitting  the  residue  to  the  United  States  treas- 
ury. All  these,  and  other  official  acts,  are  performed,  as  the  officer  of 
the  United  States,  for  the  protection  of  the  persons  and  property  of 
the  citizens  of  the  United  States.  In  them  all,  he  represents  the  gov- 
ernment by  which  he  is  invested  with  authority  to  perform  them.  He 
is  the  instrument  through  whom  the  United  States  extends  protec- 
tion to  such  of  its  citizens;  and  as  an  emblem  of  his  authority,  and  of 
so  much  of  the  sovereignty  of  his  government,  he  is  permitted  to  raise 
its  national  flag  over  his  consulate  residence. 

If,  then,  he  is  appointed  and  paid  by  the  United  States — is  re- 
sponsible to  that  government  for  his  official  conduct;  if  he  is  recog- 
nized by  the  government  to  which  he  is  sent  as  the  officer  of  the 
Ignited  States;  if  he  acts  on  behalf  of  the  United  States;  and  his  of- 
ficial acts  relate  only  to  the  persons  and  property  of  citizens  of  the 
T'^nitf'd  States,  he  must  be  regarded  as  a  representative  of  the  United 
States  within  the  meaning  of  our  statute,  and  so  have  (432)  authority 
to  administer  an  oath  to  be  used  in  the  courts  of  this  state.  "We  must 
therefore  conclude  that  a  consul  has  authority  to  administer  an  oath, 
and  that  the  objections  to  the  formality  of  the  affidavits  are  not  sus- 
tained. 

SEMMENS  V.  WALTERS,  (1882,  U.  S.) 

r,r,    WiH.    67.5;    ].3    N.    W.    889. 

Orton,  Supreme  Court  of  "Wisconsin. 

(681)  ORTON,  J.  (Extract)  1.  The  depositions  were  returned  to 

332 


CONSULAR  CASES 

the  commissioner  in  Canada  for  correction  by  signing  his  name  as 
a  commissioner  instead  of  consul  of  the  United  States.  This  was  not 
error.  2  Wait,  Pr.  707;  Keeler  v.  Vanderpool,  1  Code  R.  (N.  S.) 
289;  Creamer  v.  Jackson,  4  Abb.  413.  It  is  suggested,  but  not  de- 
cided, the  statute  authorizing  commissions,  contemplates  their  issue 
to  imoflficial  persons  not  otherwise  authorized  to  take  depositions,  and 
the  issue  of  commissions  only  to  persons  in  another  state  or  terri- 
tory of  the  Union.  Consuls  of  the  United  States  are  authorized  to 
take  depositions  without  a  commission,  and  a  commission  is  needless. 
2  Rev.  St.  U.  S.  (2  Ed.)  §  1750;  Herman  v.  Herman,  4  Wash.  C. 
C.  555.  And  it  is  questionable  whether  the  strict  rules  of  taking  de- 
positions by  commissioners  ought  to  be  applied  in  such  a  case,  where 
the  proper  notice,  as  in  this  case,  was  given  of  the  examination  of 
certain  witnesses  whose  residence  is  given  in  the  notice  before  a  consul 
of  the  United  States  in  one  of  the  provinces  of  Canada,  and  the 
time  and  place  are  also  given  in  the  notice. 

SHARPE  AND  SHARPE  v.  CRISPIN,  (1869,  Great  Britain) 

1  L.  R.  P.  &  D.  611;  20  L.  T.  41. 

Wilde,  Courts  of  Probate  and  Divorce. 

(Syllabus)  The  mere  residence  as  a  consular  officer  in  a  foreign  country  gives 
rise  to  no  inference  of  a  domicile  in  that  country.  But,  if  one  already  domiciled 
and  resident  in  such  country  accept  an  office  in  the  consular  service  of  another 
country,  he  does  not  thereby  destroy  his  domicile. 

SHOREY  V.  RENNELL,  (1858,  U.  S.) 

1  Sprague  416. 

Sprague,  District  Court. 

[Imprisonment  of  seamen  by  consul  condemned.  The  master  of 
vessel  had  unfair  advantage  in  laying  his  complaint  before  consul, 
who  should  have  been  * '  extending  to  the  seamen  that  protection  which 
they  had  a  right  to  demand  from  his  official  character." — Ed.] 

SIDY  HAMET  BENOMOR  BEGGIA,  (Case  of),  (1822,  Great  Britain) 
1  Add.  340. 

[Case  where  consul  appointed  by  emperor  of  Morroco  to  receive 
estate  of  deceased  consul  leaving  no  heirs  petitioned  to  be  appointed 
administrator. — Ed.  ] 

SIMPSON  V.  FOGO,  (1862,  Great  Britain— U.  S.) 

1  H.  &  M.  195;  29  L.  J.,  ch.  657. 

Wood,  Vice  Chancellor,  High  Court  of  Chancery. 

[Consul  intervened  in  suit  with  authority  from  absent  subject. 
Seems  to  raise  no  question  affecting  consuls. — Ed.] 

333 


CONSULAR  CASES 

SIRIUS.  THE.  (1891,  U.  S.— Great  Britain) 
47  Fed.  Eep.  825. 
Ross,  District  Court. 

[British  consul  asked  court  to  take  jurisdiction  in  a  suit  for  wages 
and  breach  of  contract — court  accordingly  took  jurisdiction. — Ed.] 

SMITH  V.  TREAT,  (1845,  U.  S.) 
Fed.  Cases  13,117;  4  N.  Y.  Leg.  Obs.  13. 
Ware,  District  Court. 

[Consul  sent  home  in  irons  mate  who  killed  sailor. — Ed.] 

SNOW  V.  WOPE,  (1855  U.  S.) 
Fed.  Cases  13,149. 
Curtis,  Circuit  Court. 

(Extract)  The  consul  of  the  United  States  for  that  port  was 
absent.  His  clerk  came  on  board  and  saw  the  libellant,  and  told  him 
he  was  not  entitled  to  his  discharge,  and  appears  to  have  aided  the 
master  to  procure  the  iaterposition  of  the  local  authorities.  If  this 
had  been  done  bj^  the  consul,  under  the  powers  conferred  on  him  by 
the  act  of  congress  of  July  20,  1840,  and  there  was  no  illegality  in  the 
conduct  of  the  master  in  applying  to  him  for  his  action  in  the  matter, 
then,  as  was  held  by  this  court  in  Jordan  v.  Williams,  the  master 
would  not  have  been  liable  for  such  imprisonment.  But  no  one  but  a 
duly  appointed  consul  or  commercial  agent  of  the  United  States,  is  in- 
trusted by  the  act  of  congress,  with  the  power  to  employ  the  local 
authorities  to  check  insubordination, 

SORENSEN  V.  THE  QUEEN,  (1857,  Great  Britain) 

11  M.  P.  C.  C.   119. 

Sir  John  Patteson,  Privy  Council. 

See  The  Baltica  1  Spink's  Prize  Cases  264. 

SPANISH  CONSUL'S  PETITION,  (1867,  U.  S.— Spain) 

1  Ben.  22rj. 

Blatchford,  District  Court. 

Foreign  commission. 

BLATCTTFOPD.  J.  The  petitioner,  who  is  the  consul  of  her 
majesty  the  queen  of  Spain  at  the  port  of  New  York,  represents  that 
he  has  received  from  the  judge  of  the  Southern  District  of  Santiago, 
in  the  island  of  Cuba,  a  commission,  empowering  him  to  take  the  testi- 

334 


CONSULAR  CASES 

mony  of  certain  witnesses  named  therein,  to  be  used  in  a  criminal 
prosecution  for  swindling,  a  translation  of  which  commission  he 
produces,  and  he  prays  that  a  summons  may  be  issued  by  me  requiring 
the  witnesses  to  attend  and  testify.  I  have  no  power  to  issue  the 
summons  asked  for.  The  only  provisions  made  by  congress,  on  the 
subject  of  enforcing  the  giving  of  testimony  in  judicial  proceedings 
pending  in  a  foreign  country,  are  those  found  in  the  act  of  March  2d, 
1855  (10  U.  S.  Stat,  at  Large,  630,  sect.  2),  and  in  the  act  of  March 
3d,  1863  (12  Id.  769).  The  former  provides  that  "where  letters 
rogatory  shall  have  been  addressed  from  any  court  of  a  foreign  coim- 
try  to  any  circuit  court  of  the  United  States,  and  a  United  States 
commissioner  designated  by  said  circuit  court  to  make  the  examination 
of  witnesses  in  said  letters  mentioned,  said  commissioners  shall  be  em- 
powered to  compel  the  witnesses  to  appear  and  depose  in  the  same 
manner  as  to  appear  and  testify  in  court."  The  latter  act  is  con- 
fined to  the  taking  of  testimony  to  be  used  in  a  suit  for  the  recovery 
of  money  or  property  depending  in  a  court  of  a  country  with  which 
the  United  States  are  at  peace,  and  in  which  the  government  of  such 
foreign  country  is  a  party  or  has  an  interest. 
The  prayer  of  the  petition  is  denied. 

STAHEL  V.  UNITED  STATES,  (1891,  U.  S.) 

26  Ct.  CI.  193. 

Davis,  Court  of  Claims  of  the  United  States. 

(195)  DAVIS,  J.,  delivered  the  opinion  of  the  court: 
Section  1745  of •  the  revised  statutes  authorizes  the  president  to 
prescribe  the  "rates  or  tariff  of  fees  to  be  charged  for  official  ser- 
vices and  to  designate  what  shall  be  regarded  as  official  services,  be- 
sides such  as  are  expressly  declared  by  law."  Pursuant  to  this  au- 
thority the  president  has  published  a  volume  entitled  "Consular  Reg- 
ulations," containing  the  regulations  and  instructions,  including  a 
tariff  of  fees  to  be  charged  for  official  services,  for  the  information  and 
government  of  con-(196)sular  officers  of  the  United  States.  The 
regulations  of  1881  were  in  force  during  the  entire  period  covered  by 
this  action. 

As  to  the  authority  conferred  by  section  1745  (Rev.  Stat.)   the 
supreme  court  said: 

"This  section  concerns  itself  wholly  with  "official  services."  The  tariffs 
of  fees  to  be  prescribed  by  the  president  from  time  to  time  are  those  to  be 
charged  for  "official  services."  The  president  is  to  designate  what  are  to  be 
regarded  as  "official  services"  in  addition  to  such  as  are  expressly  declared  by 
law."     (Mosby  v.  The  United  States,  133  U.  S.  E.,  273.) 

335  ^ 


CONSULAR  CASES 

Section  180  of  the  consular  regulations  (1881)  provides  as  fol- 
lows: 

' '  These  provisions  respecting  tonnage  and  other  fees  and  the  deposit  of  a 
ship's  papers  apply  to  American  or  foreign  built  vessels  purchased  abroad  and 
whoUv  owned  by  citizens  of  the  United  States,  in  the  same  manner  as  to  regularly 
documented  vessels." 

"Wliile  plaintiff  was  consul-general  at  Shanghai,  China,  he  per- 
formed services  for  vessels  of  this  description,  and  there  were  paid  into 
his  office  "tonnage  dues"  and  fees  for  "report  to  customs,"  for  "oath 
and  appointment  of  master,"  and  for  "bill  of  health,"  which  he 
turned  into  the  treasury,  and  now  claims  were  his  personal  emolu- 
ment. 

On  behalf  of  plaintiff  it  is  contended  that  the  vessels  to  which 
the  consular  services  were  rendered  were  not  ships  or  vessels  of  the 
United  States;  that,  while  entitled  to  government  protection  as  prop- 
erty of  citizens  of  the  United  States,  they  were  under  no  legal  obliga- 
tion to  obtain  and  pay  for  the  services  of  consuls  at  foreign  ports; 
that  having  done  so,  the  fees  paid  therefor  were  "unofficial,"  not  "of- 
ficial" fees,  as  the  consul  acted  unofficially,  and  not  under  warrant 
of  law ;  that  is,  his  services  were  personal. 

Before  considering  this  proposition  it  should  be  noted  that  the 
question  before  us  is  not  primarily  whether  vessels  of  this  class  are 
obliged  to  pay  fees  of  the  kind  complained  of,  but  whether,  when  paid, 
the  president  can  classify  these  fees  as  official  fees  or  must  regard  them 
as  unofficial  fees. 

The  money  has  in  fact  been  paid ;  the  consular  regulations,  in  fact, 
affix  to  it  an  official  character,  and  it  is  now  in  the  national  treas- 
ury.  (197) 

Whether  the  shipowner  was  under  legal  obligation  to  pay  these 
fees  is  one  question ;  whether,  when  paid,  the  consul  may  retain  them 
as  fees  for  unofficial  services  is  another  question. 

The  power  of  the  president  under  section  1745  of  the  revised 
statutes  is  very  broad,  and  authorizes  him  to  prescribe  the  rates  of 
fees  to  be  charged  for  official  services,  to  designate  what  shall  be  re- 
garded as  official  services,  "besides  such  as  are  expressly  declared  by 
law."  and  to  adapt  the  rates  or  tariffs  of  fees  to  the  different  con- 
sulates. There  seem  to  be  but  two  limitations  upon  his  power — one 
(expressed)  which  prevents  him  from  declaring  a  fee  to  be  unof- 
fir'ial  which  the  law  declares  official;  and  one  (implied)  which  pre- 
vents him  from  prescribing  a  fee  for  a  service  which  the  law  declares 
shall  be  rendered  gratuitously. 

It  may  or  may  not  be  that  the  president  had  not  the  power  to 
force  the  shipowner  to  pay  these  fees;  as  to  this,  of  course  we  express 

336 


CONSULAR  CASES 

no  opinion ;  but  if  he  had  not  the  power  and  the  fees  were  illegally  col- 
lected, we  still  fail  to  see  how  the  consul  can  base  upon  this  fact  a 
claim  to  retain,  as  a  personal  emolument,  the  money  so  illegally  col- 
lected. The  president  has  directed  the  collection  of  fees  of  this  class 
and  has  marked  them  with  an  official  stamp;  if  the  fee  is  illegally 
collected,  the  owner  may  perhaps  have  a  right  of  recovery  against  the 
government,  which  directed  their  collection,  but  the  subordinate  of- 
ficer who  performed  the  services  and  collected  the  fees  under  the  dis- 
tinct order  of  the  president,  which  at  the  same  time  classified  the  ser- 
vices and  the  fees  as  official,  can  not  lay  claim  to  the  money  thus 
coming  into  his  hands. 

Subject  to  the  limitations  we  have  suggested  the  president  may 
at  any  time  transfer  a  fee  from  the  unofficial  to  the  official  schedule  or 
vice  versa;  or  he  may  increase,  diminish,  or  abolish  a  fee,  and  his 
directions  in  this  regard  are  binding  upon  the  officers  of  the  consular 
service.  In  the  words  of  the  supreme  court,  speaking  by  Mr.  Justice 
Blatchf  ord : 

"The  president  is  to  designate  what  are  to  be  regarded  as  'official  ser- 
vices' in  addition  to  Buch  as  are  expressly  declared  by  law  (supra)." 

These  items  are  therefore  not  allowed,  and  judgment  will  be  en- 
tered in  favor  of  plaintiff  for  the  other  items  of  his  claim  which  are 
within  the  decision  in  Mosby's  Case.  Judgment  for  plaintiff  in  the 
sum  of  $5,190.21. 

STATE  V.  DE  LA  FORET,  (1820,  U.  S.) 

2  Nott.  &  McC.  217. 

Huger,  Constitutional  Court  of  South  Carolina. 

An  ambassador  or  public  minister  of  a  foreign  prince  or  state,  is  not  amenable 
to  the  laws  of  the  nation  to  which  he  is  sent. —  (a.) 

The  law  of  nations  does  not  exempt  a  foreign  consul  from  liability  to  the 
laws  of  the  state  in  which  he  resides. — (b.) 

The  federal  courts  have  not  exclusive  jurisdiction  with  regard  to  offenses 
committed  by  foreign  consuls  in  the  United  States;  but  the  consul  is  amenable  to 
the  laws  of  the  state  in  which  he  commits  an  offence. 

The  defendant  was  indicted  in  the  circuit  court  of  Charleston,  in 
January  term,  1816,  for  an  assault  and  battery. 

A  plea  to  the  jurisdiction  of  the  court,  was  interposed  on  the 
ground  that  he  was  the  French  consul,  and  therefore  not  amenable 
to  the  laws  of  the  state. 

The  plea  was  sustained  by  the  presiding  judge,  and  now  a  mo- 
tion was  made  to  reverse  that  decision. 

337 


CONSULAR  CASES 

:\IK.  JUSTICE  HUGER  delivered  the  opinion  of  the  court. 

Two  grounds  have  been  taken  in  support  of  the  plea : 

1st,  That  a  foreign  consul,  by  the  law  of  nations,  is  (218)  not 
subject  to  the  laws  of  the  state  in  which  he  resides — And 

2d.  That  if  he  be  subject  to  the  laws  of  the  country  in  which  he 
resides,  the  federal  courts  have  exclusive  jurisdiction  imder  the  con- 
stitution of  the  United  States,  over  all  cases  in  which  he  is  con- 
cerned. 

I  shall  examine  these  grounds  in  their  order. 

That  an  ambassador,  or  public  minister  of  a  foreign  prince  or 
state,  is  not  amenable  to  the  laws  of  the  nation  to  which  he  is  sent,  is, 
I  believe,  luiiversally  admitted.  All  the  writers  on  the  law  of  na- 
tions concur  in  opinion  as  to  the  existence  as  well  as  the  propriety  of 
this  immunity :  And  no  court  in  this  country,  either  federal  or  state, 
is  known  to  have  questioned  its  existence. 

In  England,  as  early  as  the  7th  of  Ann,  a  statute  was  passed, 
"exempting  ambassadors  and  public  ministers  from  the  process  of 
their  courts,  and  the  statute  declares  all  such  persons  as  should  prose- 
cute any  writ  or  process  against  them,  to  be  violators  of  the  law  of 
nations;"  and  congress,  in  1790,  passed  an  act  of  similar  import;  but 
neither  of  these  acts  extends  to  consuls. 

The  privileges  of  ambassadors  and  public  ministers  are  great, 
but  they  appear  to  be  necessary.  They  are  the  representatives  of  na- 
tions, employed  in  the  transaction  of  the  most  important  concerns, 
the  proper  management  of  which  requires  the  most  perfect  exemption 
from  all  possible  influence  or  control.  But  a  consul  appears  to  be 
neither  ambassador  nor  public  minister.  He  is  not  the  representative 
of  his  nation,  nor  is  he  employed  in  the  management  of  national  con- 
cerns. He  is  no  more  than  a  commercial  agent,  attending  to  individual 
interests.  Vattel,  (in  B.  2,  C.  2,  S.  34,)  speaking  of  consuls,  declares, 
"that  they  are  not  public  ministers,  and  cannot  pretend  to  the  priv- 
ileges of  one."  Barbeyrac,  Binkershoeck  and  Martens  declare  them 
subject  to  the  laws  of  the  country  in  which  they  reside.  But  Vattel 
appears  to  think  that  as  a  consul  holds  the  commission  of  his  sovereign, 
he  ought  to  be  regarded  as  more  under  the  law  of  nations  than  a  com- 
mon (219)  stranger.  He  goes  so  far  as  to  say,  that  a  consul's  functions 
seem  to  require  "that  he  .should  be  independent  of  the  ordinary  crim- 
inal ju.stice  of  the  place  where  he  resides,  so  as  not  to  be  molested  or 
imprisoned,  unless  he  him.self  violate  the  law  of  nations,  by  some  enor- 
mous misdemeanor."  It  is  a  mere  suggestion,  at  variance  with  the 
opinions  of  all  other  writers  on  the  subject;  and  with  which  he  does 
not  appear  to  be  entirely  satisfied  himself.  In  B.  4.  C.  6.,  Sec.  75,  he 
proceeds,  "we  have  spoken  of  consuls  in  the  article  of  commerce. 


CONSULAR  CASES 

Formerly  agents  were  a  kind  of  public  ministers;  but  in  the  present 
increase  and  profusion  of  titles,  this  is  given  to  mere  commissioners 
appointed  by  princes  for  their  private  affairs,  and  who  not  unfre- 
quently  are  subjects  of  the  country  where  they  reside.  They  are  not 
public  ministers,  and  consequently  not  under  the  protection  of  the 
law  of  nations."  He  here  classes  consuls  with  agents,  to  whom  he 
denies  the  protection  of  the  law  of  nations.  In  the  case  of  Viveash 
vs.  Beckrer,  (3  Maule  and  Selwyn,  28-4,)  Lord  Ellenborough  con- 
cludes a  very  full  investigation  of  this  question,  with  the  opinion,  that 
no  such  privilege  exists.  And  the  chief  justice  of  Pennsylvania,  in 
the  case  of  Kosloff  declares,  "that  he  cannot  hesitate  in  the  opinion 
that  there  is  nothing  in  the  law  of  nations  which  protects  a  consul 
general  from  indictment. ' '  "We  have  indeed  in  the  case  of  the  United 
States  vs.  Mr.  Ravara,  consul  from  Genoa,  the  opinion  of  the  then 
chief  justice  of  the  United  States,  Mr.  Jay,  whose  diplomatic  services 
and  great  learning  entitle  his  opinion  on  this  subject  to  great  respect, 
"that  consuls  are  not  protected  by  the  law  of  nations  from  the  jur- 
isdiction of  the  laws  of  place  where  they  reside."  (2  Dal.  297.)  I 
am  therefore  of  opinion  that  the  plea  cannot  be  sustained  on  the  first 
ground. 

The  second  ground  presents  great  difficulties:  The  complex  na- 
ture of  our  government,  the  union  of  several  sovereignties  under  one, 
and  yet  each  preserving  a  large  proportion  of  independent  sovereignty 
in  itself;  its  recent  establishment,  which  necessarily  implies  the 
absence  of  much  experience,  that  will,  in  the  progress  of  events,  ex- 
plain the  meaning  of  its  different  parts,  and  reconcile  them  in  one 
harmonious  whole,  must  frequently  originate  questions  of  great  nicety. 
In  the  consideration  of  such  questions,  much  caution  ought  to  be 
observed.  The  great  purposes  for  which  our  governments  were  es- 
tablished, must  be  constantly  kept  in  view;  and  no  narrow  rules  of 
construction  be  adopted,  which  shall  check  in  their  growth  the  pro- 
tecting powers  of  the  federal  government. 

To  the  state  governments,  is  committed  the  protection  of  all  our 
domestic  rights,  on  which  depends  almost  the  whole  of  private  happi- 
ness. Here  we  have  a  field  sufficiently  ample  to  exhaust  the  powers 
of  those,  whose  ambition  it  is  to  extend  the  bounds  of  human  happi- 
ness ;  where  the  greatest  talents,  and  most  exalted  feelings  may  be  in- 
dulged without  the  fear  of  wanting  employment. 

On  the  federal  government  is  devolved  the  duty  of  national  pro- 
tection. To  enable  it  to  perform  this  duty,  all  the  means  of  national 
defence  are  given ;  the  army,  the  navy,  the  militia,  the  power  of  taxa- 
tion, the  power  of  borrowing  money,  the  power  of  defining  and  punish- 
ing piracies  and  felonies  committed  on  the  high  seas,  and  offences 

339 


CONSULAR  CASES 

against  the  law  of  nations,  to  declare  war,  &c.  But  protection  is  not 
the  only  duty  devolved  on  the  federal  government,  by  the  constitution 
of  the  United  States.  It  has  power  to  regulate  commerce ;  to  establish 
an  uniform  rule  of  nationalization,  and  uniform  rules  on  the  subject 
of  bankrujiteies.  It  has  power  to  coin  money,  &c.  to  provide  for  the 
punishment  of  coimterf citing  the  securities  and  current  coin  of  the 
United  States;  to  establish  post-offices  and  post  roads;  to  promote  the 
progress  of  science  and  useful  arts,  by  securing  for  limited  times  to 
authors  and  inventors,  the  exclusive  rights  to  their  respective  writings 
and  discoveries ;  to  constitute  tribunals  inferior  to  the  supreme  court ; 
to  exercise  exclusive  legislation  over  such  district  as  may  be  ceded  to 
them.  Here  are  powers,  the  exercise  of  which  are  necessary  to  na- 
tional convenience,  and  it  is  difficult  to  ima-(221)gine  how  we  should 
proceed  without  an  exercise  of  these  powers,  or  most  of  them,  by  the 
federal  government.  Were  each  state  to  regulate  its  commerce,  (a 
fruitful  source  of  war,)  we  should  not  present  to  foreign  nations  a 
single,  but  a  divided  front;  and  it  does  not  require  the  spirit  of 
prophecy  to  foresee  that  the  exercise  of  such  a  power  by  the  states, 
would  soon  lead  to  a  dissolution  of  the  Union.  We  accordingly  find 
in  the  8th  sec.  of  the  1st  art.  of  the  constitution  of  the  United  States, 
the  states  expressly  prohibited  from  the  exercise  of  this  power;  "To 
establish  an  uniform  rule  of  naturalization  and  an  uniform  rule  of 
law  of  bankruptcy:"  The  exercise  of  this  power  by  the  states  would 
necessarily  defeat  the  object  of  the  constitution.  There  could  not  be  a 
uniform  system  or  rule,  if  twenty  different  governments  had  the  power 
to  legislate  on  the  subject.  It  is  not  only  the  object  of  the  constitution 
to  have  an  uniform  rule,  but  public  convenience  would  seem  imper- 
iously to  require  it.  We  are  citizens  of  the  United  States,  and  not 
of  the  respective  states,  and  foreign  merchants  trade  with  us,  and 
foreign  governments  recognize  us  when  trading  with  them,  not  as 
the  citizens  of  a  district  or  state,  but  as  citizens  of  the  United  States. 
It  would  seem  to  follow  that  not  only  the  rule  of  nationalization  should 
be  uniform,  but  the  law  of  bankruptcy  should  be  also  uniform;  and  of 
this  opinion  were  the  supreme  court  of  the  United  States  in  the  case  of 
Sturges  vs.  Crowningshield,  (4  Wheaton  196.)  The  power  of  coining 
money  is  expressly  given  to  the  federal  government  and  expressly 
taken  away  from  the  states.  If  this  power  had  not  been  taken  away 
expressly,  I  presume  little  doubt  exists,  that  the  states  would  have  re- 
tained it,  because  an  exercise  of  this  power  by  the  states  would  not 
have  been  inconsistent  with  an  exercise  of  it  by  the  federal  govern- 
ment ;  nor  would  it  have  been  more  inconvenient  to  use  the  coin  of  dif- 
ferent states  than  to  use  the  coin  of  foreign  powers. 

What  I  have  observed  of  the  powers  already  noticed,  will  apply 

340 


CONSULAR  CASES 

with  equal  force  to  all  the  powers  enumerated  (222)  in  the  constitu- 
tion. Where  powers  are  given  exclusively  to  the  federal  government, 
or  where  expressly  taken  away  from  the  states,  the  states  cannot  ex- 
ercise them;  or  when  the  power  given  to  the  federal  government,  is 
inconsistent  or  incompatible  with  the  exercise  of  that  power  by  the 
states,  the  states  are  excluded.  But  when  power  is  given  to  the  fed- 
eral government,  and  not  expressly  taken  away  from  the  states,  and 
the  exercise  of  such  power  by  the  states  is  not  incompatible  or  in- 
consistent with  the  use  of  it  by  the  federal  government,  the  power  is 
concurrrent.  The  correctness  of  the  rule,  has,  I  believe,  never  been 
questioned.  And  why  should  a  state  be  prevented  the  exercise  of  a 
power  which  is  not  expressly  taken  away  from  her?  which  is  not  ex- 
clusively given  to  the  federal  government,  and  the  exercise  of  which 
power  by  the  state,  can  lead  to  no  inconvenience  ?  Nay,  where  the  ex- 
ercise of  that  power,  not  only  does  not  produce  inconvenience  to  the 
citizens  of  the  United  States,  but  where  the  abandonment  of  it  by  the 
state  would  necessarily  lead  to  great  inconvenience,  as  in  the  case  be- 
fore the  court? 

I  shall  now  proceed  to  enquire  if  the  constitution  of  the  United 
States  has  expressly  granted  to  the  federal  government  exclusive  jur- 
isdiction over  consuls,  or  if  the  exercise  of  jurisdiction  in  such  cases  by 
the  states,  is  incompatible  with  the  exercise  of  such  power  by  the  fed- 
eral government. 

It  is  no  where  expressly  taken  away  from  the  states ;  if  it  there- 
fore be  not  exclusively  given  to  the  federal  government,  or  the  exer- 
cise of  it  by  the  states,  be  not  incompatible  with  the  exercise  of  it  by 
the  federal  government,  I  shall  conclude,  that  the  states  have  concur- 
rent jurisdiction. 

The  words  of  the  constitution  are  "The  judicial  power  shall  ex- 
tend to  all  cases  in  law  and  equity,  arising  under  this  constiution,  the 
laws  of  the  United  States,  and  treaties  made  or  which  shall  be  made 
under  their  authority;  to  all  cases  affecting  ambassadors,  other  pub- 
lic ministers  and  consuls,  in  all  cases  of  admiralty  and  mari-(223) 
time  jurisdiction ;  to  controversies  to  which  the  United  States  shall  be 
a  party  ;  to  controversies  between  two  or  more  states,  &c, ' '  The  words 
"extend  to  all  cases  affecting  consuls,"  do  not  seem  necessarily  to 
imply,  that  the  state  courts  are  excluded  jurisdiction.  But  it  is  said, 
that  m  as  much  as  the  word  all  is  prefixed  "to  cases  ia  law  and 
equity;  to  cases  affecting  ambassadors;  to  cases  of  maritime  and  ad- 
miralty jurisdiction,"  and  is  not  prefixed  "to  controversies  to  which 
the  United  States  are  a  party;  to  controversies  between  two  or  more 
states,  &c,"  the  constitution  must  have  intended  to  give  exclusive 
jurisdiction  in  the  first,  and  only  concurrent  in  the  last.  I  cannot 
perceive,  that  the  introduction  of  the  word  all  has  produced  the  small- 

341 


CONSULAR  CASES 

est  effect  on  the  meaning  of  this  section.  Were  it  omitted  altogether, 
or  attached  to  every  branch  of  the  section,  its  meaning  would  be  the 
same.  "My  estate''  means  all  my  estate,  and  "all  my  estate"  can 
mean  nothing  more  than  my  estate.  I  regard  the  word  all  as  surplus- 
age where  it  does  occur,  and  of  course  unnecessary  where  it  does  not 
occur.  But  the  invariable  practice  of  our  courts  wall  furnish 
higher  testimony  of  the  incorrectness  of  the  construction  contended 
for,  than  verbal  criticism  can  afford.  It  will  be  observed  that 
the  word  all  is  prefixed  to  cases  of  admiralty  and  maritime  juris- 
diction, and  yet  the  state  courts  invariably  sustain  action  for  seamen's 
wages.  But  can  it  be  supposed  that  the  constitution  intended  to  ex- 
clude the  state  courts  from  all  jurisdiction  over  consuls,  and  yet 
meant  to  give  them  concurrent  jurisdiction  over  controversies  to  which 
the  United  States  were  a  party  ?  or  to  controversies  between  two  or 
more  states?  and  yet  this  would  be  the  case,  if  the  construction  con- 
tended for  were  to  prevail. 

As  I  am  not  satisfied  to  give  to  the  word,  all,  in  this  section,  the 
importance  which  has  been  attached  to  it,  I  shall  proceed  to  enquire  if 
the  power  now  in  question  be  one  of  those,  the  exercise  of  which  by 
the  states  would  be  incompatible  with  the  use  of  it  by  the  federal  gov- 
ernment. 

(224)  Should  a  consul  violate  the  law  of  the  United  States,  or  the 
constitution  of  the  United  States,  or  a  treaty  made  by  the  United 
States,  he  ought  to  be  amenable  to  the  federal  courts,  and  so  far  has 
the  constitution,  I  think,  given  jurisdiction  to  the  federal  courts: 
But  when  a  consul  offends  against  the  criminal  laws  of  the  state,  with 
which  the  federal  courts  have  no  concern,  can  it  produce  any  incon- 
venience to  permit  the  state  courts  to  exercise  jurisdiction?  Can 
the  punishment  of  an  offense  against  the  state  laws,  operate  injur- 
iously to  the  United  States?  Were  consuls  like  public  ministers,  pro- 
tected by  the  law  of  nations,  they  ought  not,  and  would  not  be  amen- 
able to  the  laws  of  either  government :  But  as  they  are  not  privileged, 
because  they  are  not  the  representatives  of  their  nations,  but  mere 
private  agents,  no  embarrassments  can  follow  an  exercise  of  jurisdic- 
tion over  them  by  the  states,  that  might  not  follow  an  exercise  of  sim- 
ilar jurisdiction  over  any  other  strangers.  I  am  the  more  disposed  to 
adopt  such  a  construction  as  would  save  the  criminal  jurisdiction  of 
the  state,  from  the  difficulty  of  so  reconciling  the  different  parts  of 
the  section  as  would  lead  to  a  practical  result. 

The  second  paragraph  of  the  section  declares,  that  in  all  cases  af- 
fecting amba.ssadors.  public  ministers  and  consuls,  and  those  in  which 
a  state  shall  be  a  party,  the  supreme  court  shall  have  original  juris- 
diction. Original  here  a^jpears  to  mean  exclusive  jurisdiction.  In  the 
case  of  Marbury  vs.  Madison,   (]   Cranch  174,)   this  point  has  been 

342 


CONSULAR  CASES 

fully  investigated,  and  I  think,  satisfactorily  decided.  Should  the 
state  courts  then  be  deprived  of  jurisdiction,  it  follows,  that  consuls 
are  amenable  to  no  court,  but  the  supreme  court  of  the  United  States. 
They  cannot  be  tried  in  the  supreme  court  of  the  United  States  for 
two  reasons.  1st.  Because  the  constitution  in  the  very  section  under 
consideration,  declares,  that  "the  trial  of  all  crimes  shall  be  by  jury, 
and  the  supreme  court  of  the  United  States  have  no  jury:  And  if 
congress  should  provide  a  jury,  it  would  then  be  impracticable,  be- 
cause, (225)  in  the  very  same  section,  it  is  further  declared  that  all 
crimes  shall  be  tried  in  the  state  where  they  have  been  committed. 

The  state  courts  then  must  retain  their  jurisdiction,  or  consuls 
are  virtually  amenable  to  no  courts.  It  is  by  no  means  complimentary 
to  the  wisdom  of  those  who  framed  the  constitution,  to  give  to  it  the 
construction  contended  for.  I  believe  I  do  them  more  justice  in  sup- 
posing, that  it  was  their  intention  to  subject  consuls  to  the  jurisdic- 
tion of  the  supreme  court  of  the  United  States  only  for  violations  of 
the  constitution,  the  laws  of  the  United  States  and  treaties,  and  from 
the  state  courts  they  did  not  mean  to  take  jurisdiction  over  offences 
against  the  laws  of  the  state. 

There  is  another  view  of  this  subject,  which  must  not  be  omitted. 
In  the  case  of  Sturgis  vs.  Crowningshield,  (4  Wheaton  197)  it  was 
decided,  that  it  was  not  the  mere  existence  of  the  power  but  its  exer- 
cise which  is  incompatible  with  the  exercise  of  the  same  power  by  the 
states.  Had  the  constitution  then  given  to  the  national  government  ex- 
clusive jurisdiction  over  consuls,  in  as  much  as  they  have  not  exercised 
this  power,  it  is  retained  by  the  states. 

I  am  aware,  that  a  distinction  may  be  attempted  between  the 
legislative  and  judicial  powers  of  the  federal  government,  and  that 
my  reasoning  may  be  admitted  as  correct  with  respect  to  the  former, 
and  be  thought  inapplicable  to  the  latter.  I  have  only  to  say  in  the 
language  of  the  profound  commentator  on  the  constitution,  "though 
these  principles  may  not  apply  with  the  same  force  to  the  judiciary 
as  to  the  legislative  power,  yet  I  am  inclined  to  think  that  they  are 
in  the  main  just,  %vith  respect  to  the  former  as  well  as  to  the  latter; 
and  under  this  impression  I  will  lay  it  down  as  a  rule  that  the 
state  courts  will  retain  the  jurisdiction  they  have,  unless  it  appears 
to  be  taken  away  in  one  of  the  enumerated  modes. 

I  am  of  opinion  therefore,  that  the  plea  ought  not  to  (226)  have 
been  sustained,  and  that  the  decision  of  the  circuit  court  ought  to  be 
reversed. 

JUSTICES  BAY  AND  COLCOCK,  concurred. 

MR.  JUSTICE  NOTT  dissented. 

Whether  the  consul  of  a  foreign  state  is  amenable  to  the  local  jur- 

3-13 


CONSULAR  CASES 

isdiction  of  the  country  in  which  he  resides  for  a  violation  of  the 
laws  of  that  eoiiutr}-,  is  a  question  on  which  I  shall  give  no  opinion, 
because  I  consider  it  one  belonging  to  the  courts  of  the  United  States, 
to  decide,  and  not  to  this  court.  But  that  the  jurisdiction  belongs  ex- 
clusively to  the  courts  of  the  United  States,  is  too  clear  to  my  mind  to 
admit  of  hesitiition.  And  whether  I  look  to  the  particular  phraseology 
of  the  constitution,  to  the  class  of  cases  with  which  this  is  associated 
in  that  instrument,  or  to  the  general  policy  of  the  measure,  I  am 
equally  lead  to  that  conclusion. 

The  individual  states  taken  unconnected  by  the  articles  of  con- 
federation, would  be  considered  as  separate,  sovereign  and  independ- 
ent states. 

The  government  of  the  United  States  considered  in  its  federal 
capacity,  is  constituted  of  that  portion  of  sovereignty  which  the  in- 
dividual states  have  surrendered  or  thrown  into  one  common  stock, 
for  the  benefit  of  the  whole.  That  government  therefore  is  as  sov- 
ereign and  independent  over  all  matters  thus  surrendered  as  the 
government  of  each  state  is  over  those  which  are  retained. 

It  would  seem  to  result  as  a  necessary  consequence  of  a  govern- 
ment so  organized,  that  there  must  be  three  distinct  classes  of  judicial 
cases : 

1st.  Those  of  a  general  nature,  involving  the  interest  of  the  United 
States  in  their  federal  or  aggregate  capacity. 

2d.  Those  of  a  mixed  character,  involving  the  common  and  mu- 
tual interests  of  the  general  and  state  governments,  &c. 

3d.  Those  of  a  local  nature,  which  belong  exclusively  to  the  in- 
dividual states. 

(227)  Over  the  first  class,  the  courts  of  the  general  government 
must  be  permitted  to  exercise  exclusive  jurisdiction. 

Over  those  of  the  second,  they  possess  a  jurisdiction  concurrent 
with  the  several  states. 

And  the  jurisdiction  of  the  third  belongs  exclusively  to  the  courts 
of  the  individual  states. 

Having  thus  seen,  that  these  three  classes  of  cases  must  neces- 
sarily exist,  the  nature  of  the  cases  would,  in  most  instances,  enable 
u.s  to  refer  them  to  the  proper  jurisdiction  without  the  aid  of  the 
constitution.  But  the  framers  of  that  instrument  having  considered 
it  a  matter  of  too  much  importance  to  be  left  to  construction,  have  dis- 
tinctly marked  out  by  metes  and  bounds  the  jurisdiction  to  which 
each  shall  belong.  The  2d.  section  of  the  third  article  of  the  con- 
stitution provides,  that  the  judicial  power  of  the  United  States  shall 
extend  to  all  cases  in  law  and  equity  arising  under  this  constitution, 
the  laws  of  the  United  States  and  treaties  made,  or  which  shall  be 

344 


CONSULAR  CASES 

made  under  their  authority;  to  all  cases  affecting  ambassadors,  pub- 
lic ministers  and  consuls;  in  all  cases  of  admiralty  and  maritime  jur- 
isdiction; to  controversies  between  two  or  more  states;  between  a 
state  and  the  citizens  of  another  state;  between  citizens  of  different 
states ;  between  citizens  of  the  same  state,  claiming  lands  under  grants 
of  different  states,  and  between  a  state  and  the  citizens  thereof  and 
foreign  states,  citizens  or  subjects.  This  section  embraces  the  two 
first  classes  above  mentioned.  It  was  unnecessary  to  notice  the  third, 
because  all  cases  not  delegated  to  the  courts  of  the  United  States,  be- 
long exclusively  to  those  of  the  several  states.  Those  belonging  to  the 
first  class  are  all  cases  arising  under  the  constitution,  the  laws  of  the 
United  States  and  treaties  made  or  which  shall  be  made  under  their 
authority;  all  cases  affecting  ambassadors,  public  ministers  and  con- 
suls, and  all  cases  of  admiralty  and  maritime  jurisdiction.  The  second 
class  includes  all  the  other  eases  which  follow  in  the  succeeding  part 
of  the  section. 

I  have  had  occasion  heretofore  to  consider  this  clause  (228)  of 
the  constitution.  But  as  that  opinion  has  not  been  published,  I  can- 
not by  reference  to  it  show  the  train  of  reasoning  to  which  I  must 
now  resort  in  support  of  my  opinion.  And  I  shall  therefore  be  under 
the  necessity  of  repeating  what  I  have  already  said  on  the  same  sub- 
ject. 

The  distinction  between  the  two  classes  will  be  discovered  in  the 
language  of  the  constitution.  The  judicial  authority  of  the  United 
States  is  extended  to  all  those  of  the  first  class.  In  relation  to  the 
second  the  word,  all,  is  omitted.  If  the  jurisdiction  of  the  United 
States  courts  extends  to  all  of  the  first  class,  then  there  is  none  to 
which  it  does  not  extend,  and  the  jurisdiction  must  be  exclusive. 

To  this  it  is  answered,  that  the  addition  of  that  word  does  not 
enlarge,  nor  the  omission  of  it  restrict  the  meaning  of  the  words  with 
which  it  is  connected :  That  it  may  be  stricken  out  of  the  first  class 
or  added  to  the  second,  and  the  meaning  will  be  precisely  the  same. 
I  may  perhaps  admit,  that  if  it  had  been  carried  through  the  whole 
section,  it  would  not  have  given  the  United  States  court  exclusive  jur- 
isdiction over  all  the  eases  therein  specified;  and  that  the  omission  of 
it  altogether  might  not  have  given  the  state  courts  concurrent  juris- 
diction in  all.  But  it  is  the  addition  of  it  in  one  part,  and  the  omis- 
sion of  it  in  another  part  of  the  same  section,  that  constitutes  the  dis- 
tinction. 

I  have  assumed  a  position,  which,  I  suppose,  will  not  be  denied, 
that  there  are  some  cases  which  belong  exclusively  to  the  courts  of  the 
United  States.  And  it  must  be  supposed  that  it  was  intended  to  give 
the   constitution   some   characteristic   feature   by  which  those   cases 

345 


CONSULAR  CASES 

might  be  distinguished.  And  if  it  be  by  the  addition  or  omission  of 
a  single  word  and  the  intention  be  apparent,  we  must  give  effect  to  it. 
"When  we  see  it  studiously  repeated  in  relation  to  all  the  first  enu- 
merated cases,  and  studiously  omitted  when  speaking  of  the  second, 
we  cannot  suppose,  that  such  a  change  of  phraseology  was  made 
^\^thout  some  object.  It  would  be  doing  injustice  to  the  venerable 
authors  of  that  instrument,  every  word  of  which  may  be  (229)  looked 
upon  almost  as  a  monument  of  prophetic  wisdom,  to  suppose,  that  it 
happened  by  accident  and  not  by  design.  And  if  it  may  produce  the 
effect  which  I  have  supposed,  and  can  produce  no  other,  then  we  have 
a  right  to  conclude,  and  indeed  I  think  we  are  bound  to  conclude, 
that,  that  alone  was  the  object  and  no  other.  I  apprehend,  that  it 
will  be  admitted,  that  all  the  other  cases  comprised  in  the  same 
class  belong  exclusively  to  the  courts  of  the  United  States:  And  if 
so,  I  cannot  perceive  upon  what  principle  this  particular  case  can  be 
denied  that  privilege. 

If  however  I  am  mistaken  in  supposing,  that,  that  point  will 
be  conceded,  I  must  once  more  reconcur  to  the  cases  there  mentioned, 
and  I  think,  from  an  attentive  perusal  of  them,  the  conclusion  will 
appear  inevitable.  The  first  are  cases  arising  under  the  constitution; 
the  laws  of  the  United  States  and  treaties  made  under  their  authority. 
When  the  United  States  in  a  federal  capacity  assumed  the  powers  of 
sovereignty,  it  became  necessary  that  they  should  possess  all  the  means 
of  carr>'ing  those  powers  into  effect.  That  the  operations  of  every 
government  should  be  carried  on  through  the  instrumentality  of  its 
own  agents,  is  an  essential  attribute  of  sovereignty.  And  for  that 
purpose  the  powers  of  the  legislature  and  judiciary  must  be  co-or- 
dinate and  correlative.  It  was  particularly  proper  therefore,  that  all 
those  cases  should  be  given  exclusively  to  the  court  of  the  United 
States;  otherwise  the  general  government  would  be  indebted  to  the 
courtesy  of  the  states,  for  the  exercise  of  their  most  important  func- 
tions. That  questions  of  this  sort  may  come  incidentally  before  the 
state  courts  and  must  be  decided  by  them,  I  have  no  doubt.  Such 
were  the  cases  of  Potter  and  Bulow  vs.  the  City  Council,  and  Alexan- 
der vs.  Gibson,  (1  Nott  &  M'Cord  527,  480,)  decided  in  this  court. 
But  I  presume  it  will  not  be  contended,  that  we  have  a  direct  au- 
thority over  such  cages. 

The  next  description  of  cases  embraced  in  its  catalogue  are  cases 
affecting  ambassadors,  public  ministers  and  consuls.  To  these  it  is 
an.swered,  that  ambassadors  and  (230)  public  ministers  are  not  amen- 
able even  to  the  courts  of  the  United  States.  That  is  a  question  on 
which  it  is  not  my  intention  to  give  any  opinion.  It  is  sufficient  for 
my  purpose,  that  those  who  made  the  constitution  supposed,  that  such 

346 


CONSULAR  CASES 

cases  might  arise,  and  made  provision  for  them  by  consigning  them 
exclusively  to  those  courts.  Can  it  be  supposed,  that  the  persons  to 
whom  was  confided  the  important  duty  of  forming  the  constitution, 
did  not  foresee  the  difficult  and  delicate  questions  which  would  nec- 
essarily arise  out  of  our  relations  with  foreign  nations?  Ambassadors 
and  public  ministers  represent  the  persons  of  their  sovereigns.  Their 
business  is  with  the  United  States,  and  not  the  individual  states.  And 
it  would  have  been  unwise  and  improper  to  have  hazarded  the  peace  of 
the  country  by  subjecting  their  rights  or  persons  to  the  jurisdiction 
of  the  state  courts  over  which  the  general  government  had  no  control. 
It  was  equally  for  the  peace  and  security  of  the  country  and  foreign 
ministers,  that  all  cases  affecting  them,  should  be  placed  in  the  hands 
where  it  appears  to  me  most  manifest,  that  they  have  been  placed. 

The  last  description  of  cases  included  in  this  list,  is  cases  of  ad- 
miralty and  maritime  jurisdiction.  These  cases  springing  out  of  the 
source  from  whence  most  of  our  collisions  with  foreign  nations  might 
be  expected  to  arise,  it  was  equally  necessary  and  proper,  that  those 
also  should  be  confined  to  the  tribunals  of  the  general  government. 
But  I  believe  it  is  so  universally  admitted,  that  the  state  courts  have 
no  jurisdiction  over  admiralty  and  maritime  cases,  that  I  will  not 
dwell  longer  on  the  subject. 

I  have  now  gone  through  with  all  the  cases  over  which  I  consider 
that  the  courts  of  the  general  government  have  exclusive  authority. 
And  when  I  find  consuls  included  in  the  same  catalogue,  and  coupled 
in  the  same  sentence  with  ambassadors,  and  other  foreign  ministers, 
I  feel  bound  to  consider  them  as  entitled  to  the  same  privileges.  I 
do  not  mean  the  same  privileges  allowed  by  the  laws  of  nations  to  min- 
isters of  a  higher  grade,  but  to  the  (231)  privilege  afforded  them  by 
the  constitution  of  being  tried  in  the  courts  of  the  United  States. 
The  same  principle  of  policy  which  prescribed  the  jurisdiction  of  the 
other  enumerated  cases  equally  required  that  the  consuls  should  be 
included  also.  They  are  the  public  agents  of  foreign  nations. 
They  have  many  important  public  duties  to  perform.  They  consti- 
tute a  link  in  the  chain  of  our  foreign  relations,  which  ought  not  to 
be  broken  by  the  interference  of  state  authority. 

We  have  had  a  recent  instance  of  the  deep  interest  which  govern- 
ments take  in  the  privileges  of  their  foreign  agents,  in  the  case  of  the 
American  consul,  who  was  lately  imprisoned  in  Spain :  And  we  can- 
not suppose  that  other  nations  take  less  interest  in  their  safety  than 
our  own.  It  is  a  case  in  which  the  pride  and  honor  of  a  nation  is 
concerned,  and  respecting  which  it  cannot  feel  indifferent.  Indeed,  I 
consider  it  a  question  on  which  the  peace  of  the  United  States  may  so 
much  depend,  that  I  cannot  but  feel  some  regret  that  any  difference 

347 


CONSULAR  CASES 

of  opinion  should  exist  in  this  conrt  on  the  subject.  This  defendant,  I 
understand,  is  now  the  consul  of  France  in  another  state.  Ought  he 
to  be  drawn  from  his  public  duties  to  save  his  recognizance  from  for- 
feiture? Or  be  detained  from  them  to  atone  for  his  offence  by  any 
authority  imder  the  state?  Suppose  he  should  be  imprisoned,  and  his 
government  should  think  he  had  been  ^v^onged?  Redress  would  be 
sought  for  from  the  general  government,  and  not  from  this.  If  the 
case  was  in  a  court  of  the  United  States,  the  president,  from  motives 
of  policy,  and  for  the  sake  of  peace,  might  discharge  the  prosecution, 
remit  the  recognizance  or  pardon  the  offence.  But  he  can  have  no 
control  over  it,  if  the  jurisdiction  belongs  to  the  state  courts.  As  far, 
therefore,  as  policy  can  influence  the  decision,  it  is  strongly  opposed 
to  the  power  which  we  are  about  to  exercise. 

There  were  but  two  grounds  taken  in  the  argument  on  which  I 
felt  any  difficulty.  The  first  was,  that  the  immunity  allowed  by 
the  constitution  to  consuls  relates  only  (232)  to  transactions  connected 
with  their  consular  functions.  The  second,  that  until  congress  shall 
make  some  provision  to  enable  the  courts  of  the  United  States  to 
exercise  their  authority,  the  jurisdiction  remains  in  the  state  courts. 

But  a  moments  reflection  dissipated  all  my  doubts  on  the  first 
point.  It  not  only  presupposed  a  right  to  enquire  into  the  fact  of 
his  consularship,  but  also  the  extent  of  his  powers  and  the  duties  of 
his  office.  That  is  to  say,  the  court  may  give  itself  jurisdiction  by 
stripping  him  of  his  consular  character,  or  limiting  his  powers,  and 
then  try  him  for  his  offence.    ''  Castigatque,  auditque  dolos.'^ 

With  regard  to  the  second  question,  I  am  not  satisfied  that  con- 
gress has  not  made  all  the  provisions  necessary  to  enable  the  courts 
of  the  United  States  to  exercise  the  jurisdiction  vested  in  them  by 
the  constitution,  if  any  such  provision  was  necessary.  But  it  appears 
to  me  a  question  not  material  to  the  decision.  If  the  constitution  has 
given  the  jurisdiction,  exclusively  to  the  general  government,  the 
omission  to  exercise  it,  cannot  give  jurisdiction  to  the  states.  Suppose 
congress  had  omitted  to  provide  for  the  pimishment  of  treason  or 
piracy,  would  the  state  courts  thereby  acquire  jurisdiction  over  those 
offences?    I  apprehend  not. 

From  any  view,  therefore,  which  I  have  been  able  to  take  of  the 
question,  I  have  seen  no  reason  to  change  the  opinion  given  in  the 
court  below.  Indeed  my  confidence  in  that  opinion  is  increased  by 
the  .support  which  it  has  derived  from  the  very  able  view  taken  of  a 
similar  question  by  Chief  Justice  Tighlman,  in  the  case  of  Common- 
wealth of  Pennsylvania  vs.  Kosloff.  (2  Am.  Reg.  340.  see  also  Mann- 
hardt  vs.  Soderstrom,  1  Fin.  138.) 

I  am  di.sposed  to  support  the  sovereignty  of  the  states,  but  not  to 

348 


CONSULAR  CASES 

invade  that  of  the  United  States,  nor  to  violate  the  relations  subsist- 
ing between  them.  I  am  afraid  that  the  jarring  elements  of  which 
our  confederacy  is  composed,  are  bound  together  by  but  feeble  hands 
at  best ;  and  I  am  not  disposed  to  weaken  them  by  assuming  an  (233) 
authority  which  we  do  not  possess,  or  even  wishing  for  a  jurisdiction 
which  we  cannot  safely  exercise. 

I  am  of  opinion,  therefore,  that  this  motion  ought  not  to  pre- 
vail. 

JUSTICES  JOHNSON  AND  GANTT,  concurred. 

N.  B. — The  judges  were  equally  divided  in  the  above  case,  but  as 
by  act  of  assembly  "the  opinion  of  the  judge  who  tried  the  cause, 
(Mr.  Justice  Nott)  shall  not  be  allowed,  and  shall  have  no  effect  in 
the  final  determination  of  the  case,"  Mr.  Justice  Huger's  opinion  is 
the  judgment  of  the  court. 

(a.) — Burlam.  Prin.  Pol.  Law,  424,  part  4,  Chap.  15,  MoUoy  de  jure  Mar.  et 
Naval.  B.  1  C.  10.  Martens'  Law  of  Nationg,  B,  7.  C.  5,  Sec.  1,  2,  3,  4.  Bar- 
buit'8  Case,  case  temp.  Talbot  281.  Triquet  et  al.  vs.  Bath,  3  Bur.  1478.  S.  C. 
1  Black,  471. 

(b.)— 1  Beawes,  Lex  Mercat.  291.  Wickquef.  Eights  of  Em.  40,  Martens'  Law 
of  Nations,  B.  4,  C.  3,  Sect.  8,  and  notes.  Brown's  Admiralty  Law  505.  Bar- 
buit's  Case,  temp.  Talbot,  283.  Marshall  vs.  Critico,  9  East,  447.  Clarke  vs. 
Cretico,  1  Taunton,  108.     1  Bac.  Abr.  tit.  Ambassadors. 

STEIN  V.  BOWMAN,  (1839,  U.  S.) 

13  Pet.  209. 

M'Lean,  Supreme  Court. 

(217)  Mr.  Justice  M'Lean  delivered  the  opinion  of  the  court, 

(Extract)  This  case  was  brought  originally  in  the  district  court 
of  the  United  States  for  the  eastern  district  of  Louisiana ;  and  on  the 
trial  certain  exceptions  were  taken  to  the  ruling  of  the  court  by  the 
(218)  plaintiff,  and  which  he  now  brings  before  this  court  on  a  writ 
of  error. 

The  action  was  brought  by  petition,  in  the  form  peculiar  to  the 
courts  of  Louisiana,  to  compel  the  defendant  to  render  an  account  as 
curator  of  the  estate  of  Nicholas  Stone,  or  Stein,  deceased. 

The  plaintiff  represents  himself  as  an  alien,  and  as  the  only  heir 
at  law  of  the  deceased. 

Some  time  after  the  defendant  had  answered  the  petition,  Johann 
Stein,  and  others,  filed  their  petition  of  intervention,  denying  the 
statements  in  the  plaintiff's  petition,  and  representing  themselves  to  be 
the  true  heirs  of  the  deceased. 

The  cause  was  submitted  to  a  jury;  and  on  the  trial,  to  sustain 
bis  case,  the  plaintiff  offered  in  evidence  certain  German  documents, 

849 


CONSULAR  CASES 

for  the  purpose  of  using  such  parts  of  them  as  contained  the  deposi- 
tions which  related  to  the  pedigree  of  the  plaintiff;  which  were  over- 
ruled by  the  court,  on  the  ground  that  they  were  not  duly  authen- 
ticated.   And  this  constitutes  the  first  exception. 

Several  depositions  appear  to  have  been  taken,  but  none  of  them 
were  signed  by  the  deponents.  At  the  close  of  them  it  is  stated: 
"After  the  preceding  depositions  were  read  to  the  deponents,  they 
gave  their  assent  to  them  and  approbation. 

[Seal.]  (Signed)  R.  V.  D.  Busseke. 

Seen,  for  attestation  of  the  preceding  signature,  of  the  Royal 
Amtsvagtey  Burgwedel. 
Luneburg. 

Royal  British  Hanoverian  Landdrostey. 

[Seal.]  RuEMERN." 

To  which  is  added: — 

"The  subjoined  signature  of  the  royal  Britannic  Land  Bailiwick 
at  Limeburg  is  hereby  attested. 

Hamburg,  Sept.  19th,  1834 

Royal  Britannic  Hanoverian  Minister  Residentis. 

Im  Ausftrage  by  authority.  G.  W.  Kern.'* 

[Seal.] 

In  the  case  of  Church  vs.  Hubbart,  2  Cranch,  187,  this  court  held 
that  a  certificate  of  a  consul  under  his  consular  seal,  is  not  a  sufficient 
authentication  of  a  foreign  law  to  go  in  evidence;  it  not  being  one  of 
his  consular  functions  to  grant  such  certificates.  And  also  that  the 
proceedings  of  a  foreign  court,  under  the  seal  of  a  person  who  styles 
himself  the  secretary  of  foreign  affairs  in  Portugal,  is  not  evidence. 

On  the  principle  of  this  case,  it  would  seem  that  the  court  very 
properly  rejected  the  depositions  offered. 

The  certificate  and  seal  of  the  minister  resident  from  Great  Brit- 
ain in  Hanover,  is  not  a  proper  authentication  for  the  proceedings  of 
a  foreign  court,  or  of  the  proceedings  of  an  officer  authorized  to  take 
(219)  depositions.  It  is  not  connected  in  any  way  with  the  functions 
of  the  minister.  His  certificate  and  seal  could  only  authenticate 
those  acts  which  are  appropriate  to  his  office. 

The  authorit>^  to  take  the  depositions  by  the  person  before  whom 
they  were  taken  no  where  appears ;  and  it  is  not  shown  that  the  Royal 
Britannic  Hanoverian  Land  Bailiwick,  Ruemern,  was  authorized  to 
attest,  as  he  has  done,  the  signature  of  R.  C.  D.  Busseke. 

If  the  attestation  of  the  signature,  and  right  of  the  person  who 
administered  the  oaths,  were  duly  certified  under  the  seal  of  a  re- 
sponsible officer,  whose  appropriate  duty  it  was  to  give  such  certificate, 
it  might  be  received,  so  far  as  the  authentication  goes,  as  prima  facie 

350 


CONSULAR  CASES 

evidence,  though  not  under  the  great  seal  of  the  state.  It  may  be 
proper,  however,  to  remark,  (though  the  point  was  not  raised  in  the 
court  below,)  that  if  the  authentication  had  been  sufficient,  the  deposi- 
tions would  have  been  inadmissible,  they  not  having  been  taken  under 
a  commission ;  which  is  the  only  mode  by  which  depositions  in  a  for- 
eign country  can  be  taken. 

STEIN  V.  STEIN'S  CURATOR  et  al.,  (1836,  U.  S.) 

9  La.  Eep.  277. 

Bullard,  Supreme  Court  of  Louisiana. 

(280)  (Extract)  The  document  in  the  German  language  was  re- 
jected by  the  court,  on  the  ground  that  it  was  not  sufficiently  authen- 
ticated. The  only  intelligible  certificate  annexed,  is  one  by  the  Amer- 
ican consul  at  Hamburg,  "That  F.  W.  Kern,  whose  signature  is  on 
the  annexed  documents,  is  the  chancellor  of  the  Hanoverian  embassy 
to  Hamburg,  and  that  full  faith  and  credit  was  due  to  the  same." 
We  are  of  opinion  that  the  court  did  not  err  in  rejecting  the  evidence. 
It  does  not  appear  to  be  one  of  the  duties  of  American  consuls  in  for- 
eign countries,  to  attest  the  signatures  of  public  functionaries  in 
countries  in  which  they  reside.  Church  v.  Hubbard — 2  Cranch's  Re- 
ports, 187,  237;  4  Martin's  Reports,  285  and  85. 

STEWART  V.  LINTON,  (1902,  U.  S.) 

204  Pa.  207;  53  At.  744. 

Per  Curiam,  Supreme  Court  of  Pennsylvania. 

Appeal  from  court  of  common  pleas,  Armstrong  county. 

Action  by  John  Stewart  against  Phoebe  R.  E.  E.  Linton  and 
Adolphus  P.  Linton.  From  an  order  making  absolute  a  rule  for 
judgment  for  want  of  a  sufficient  affidavit  of  defense,  defendants  ap- 
peal.   Affirmed. 

The  feme  defendant  filed  an  affidavit  of  defense,  which  was  as 
follows : 

"That  at  the  time  of  the  execution  of  the  mortgage  in  suit,  and 
the  power  of  attorney  upon  which  the  actions  of  John  B.  Finlay  were 
based,  she  was  a  married  woman,  and  was  domiciled  in  the  city  of 
London,  England,  in  the  kingdom  of  Great  Britain ;  that  said  mort- 
gage in  suit  was  executed  by  one  John  B.  Finlay,  who  held  what 
purported  to  be  a  power  of  attorney  for  the  purpose  from  this 
deponent,  which  said  power  of  attorney  was  never  legally  executed 
by  this  deponent;  that  in  the  year  1891  this  deponent  and  her  hus- 
band, Adolphus  F.  Linton,  attempted  to  execute  a  power  of  attorney 
in  London,  England,  kingdom  of  Great  Britain,  empowering  the  said 

351 


CONSULAR  CASES 

John  B.  Finlay  to  transact  business  for  them  in  the  United  States  of 
America ;  that  in  the  execution  of  said  idea  they  went  before  the 
deputy  consul  general  of  the  United  States  of  America,  resident  in 
London,  England,  and  signed  such  a  power  of  attorney,  and  at  that 
time  they  were  informed  that  he  (the  deputy  consul  general)  had  not 
the  power  to  legally  take  the  proper  acknowledgment  to  the  same, 
and  that  it  was  arranged  that  they  (this  deponent  and  her  husband, 
Adolphus  F.  Linton)  should  return  to  the  consulate  the  next  day,  and 
go  before  the  consul  general,  who  had  the  power  to  take  the  proper 
acknowledgment,  and  properly  execute  the  said  power  of  attorney; 
that  thereupon  they  left  the  said  incompleted  power  of  attorney  with 
the  deputy  consul  general,  and  left  the  said  consulate;  that,  on  re- 
flection and  consideration,  she  (Phoebe  R.  E.  E.  Linton)  decided  not 
to  execute  said  power  of  attorney,  and  that  she  (the  said  Phoebe  R. 
E.  E.  Linton)  and  Adolphus  F,  Linton  never  returned  to  the  said 
consulate,  and  never  did,  in  fact,  execute  the  said  power  of  attorney, 
and  that  the  said  power  of  attorney  with  which  the  said  John  B. 
Finlay  attempted  to  charge  the  land  of  this  deponent  with  debts  was 
procured  by  fraud ;  that  this  deponent  asserts  as  a  fact  that  after  the 
refusal  of  this  deponent  and  her  husband,  Adolphus  F.  Linton,  to  re- 
turn to  the  consulate  of  the  L^nited  States  in  London,  England,  the 
said  John  B.  Finlay,  by  a  fraud  and  in  collusion  with  a  clerk  in  the 
consulate,  procured  the  power  of  attorney,  which  had  been  signed, 
but  not  executed,  by  this  deponent  and  her  husband,  Adolphus  F. 
Linton,  and  caused  the  erasure  of  the  name  of  the  deputy  consul  gen- 
eral, and  procured  or  caused  to  be  procured  the  signature  of  the  then 
consul  general  of  the  L^nited  States  of  America  resident  in  London, 
England  (John  C.  New),  to  the  acknowledgment,  and  as  a  witness  to 
the  said  power  of  attorney,  without  this  deponent  and  her  husband 
appearing  before  the  said  Jobn  C.  New,  consul  general  as  aforesaid, 
and  that  thereafter  the  said  John  B.  Finlay  came  to  America,  and 
began  to  use  the  said  power  of  attorney  to  charge  the  lands  of  this 
defendant  with  debts,  wholly  for  the  use  of  the  said  John  B.  Fin- 
lay, personally ;  that,  upon  being  advised  of  this  fraudulent  use  of  the 
said  power  of  attorney,  your  deponent  immediately  revoked  the  same ; 
that  the  mortgage  in  suit  is  one  of  the  incumbrances  placed  upon 
this  deponent's  property  by  the  said  John  B.  Finlay,  acting  under 
said  power  of  attorney,  before  the  knowledge  of  the  fraudulent  ac- 
tions of  the  said  John  B.  Findlay  came  to  this  deponent;  that  this  de- 
ponent never  received  any  of  the  consideration  money  mentioned  in 
the  mortgage  in  suit." 

The  opinion  of  the  lower  court  was  substantially  as  follows: 
"Nor  do  wfi  IhJiik  the  position  that  a  deputy  consul  general  had 

352 


CONSULAR  CASES 

no  right  to  take  acknowledgment  is  sustained  by  reason  or  authority. 
The  act  of  January  16,  1827  (P.  L.  9),  provides  that  the  acknowledg- 
ment of  a  deed  by  married  women  or  others  may  be  taken  in  any  for- 
eign country,  before  any  consul  or  vice  consul  of  the  United  States  ap- 
pointed for  that  coimtry.  The  act  of  April  9,  1849  (P.  L.  527,  §  12), 
provides  that  the  written  consent  of  a  married  woman  to  the  convey- 
ance of  her  property  may  be  acknowledged  out  of  the  United  States 
before  any  minister,  ambassador,  charge  d'  affaires,  consul,  or  vice 
consul.  The  act  of  April  2,  1859  (P.  L.  352),  provides  that  all  am- 
bassadors, ministers  plenipotentiary,  charges  d'  affairs,  or  others  ex- 
ercising public  ministerial  functions,  may  take  the  acknowledgment 
of  any  person.  Rev.  St.  U.  S.  §  1674  [U.  S.  Comp.  St.  1901,  p.  1149], 
provides  that  consular  officers  shall  include  consul  generals,  consuls, 
commercial  agents,  and  none  others.  Rev.  St.  U.  S.  §  1750  [U.  S. 
Comp.  St.  1901,  p.  1196],  provides  that  every  secretary  of  legation  and 
consular  officer  shall  have  power  to  perform  any  act  which  any  notary 
public  is  authorized  to  perform  within  the  United  States.  It  has  been 
held  that  the  acknowledgment  of  a  married  woman  before  a  United 
•States  commercial  agent  in  Canada  is  siifficient.  Moore  v.  Miller, 
147  Pa.  378,  23  Atl.  601.  If  the  allegation  is  that  the  deputy  consul 
general  had  no  right  to  take  the  acknowledgment,  that  position  is 
equally  untenable.  '  An  American  consul  in  foreign  countries  can  take 
an  acknowledgment;  a  deputy,  in  the  name  of  his  principal,'  1  Am. 
&  Eng.  Enc.  Law  (1st  Ed.)  p.  144.  Even  if  the  acknowledgment  had 
been  defective,  it  is  cured  by  the  act  of  June  1,  1891  (P.  L.  159), 
which  provides  that  all  conveyances  heretofore  or  hereafter  acknowl- 
edged before  any  deputy  consul  *  *  ♦  shall  be  valid,  to  all  in- 
tents and  purposes,  as  if  the  same  had  been  acknowledged  before  a 
notary  public. 

"As  to  the  other  defense,  of  want  of  consideration,  it  is  not  well 
taken.  An  affidavit  of  defense  to  a  sci.  fa.  on  a  mortgage  which  denies 
the  indebtedness,  but  fails  to  deny  the  execution  of  the  mortgage,  is 
insufficient  to  prevent  judgment.  May  v.  Meehan,  159  Pa.  419;  28 
Atl.  204 ;  Woods  V.  Watkins,  40  Pa.  458 ;  Stoddart  v.  Robinson,  54  Pa. 
386.  It  may  be  true  that  Mrs.  Linton  received  no  part  of  the  con- 
sideration money  of  the  mortgage.  But  there  is  no  denial  that  her 
attorney  in  fact  did  receive  it  by  virtue  of  the  power  she  had  placed 
in  his  hands.  The  affidavit  of  defense  admits  that  there  was  an  ap- 
pearance before  an  officer  that  we  have  found  competent  to  take  the 
acknowledgment,  and  that  the  attorney  in  fact  'attempted'  to  execute 
it.  That  being  the  admitted  fact,  we  think  the  official  certificate  is 
conclusive  of  every  fact  appearing  on  its  face.  When  the  affiant 
further  swore  she  never  *  legally '  executed,  she  drew  a  wrong  legal  con- 

353 


CONSULAR  CASES 

elusion.  An  affidavit  of  defense  should  state  facts,  not  conclusions. 
On  the  whole,  it  seems  to  us  that  the  affidavit  of  defense  is  but  a 
tiimsy  pretense  to  postpone  the  collection  of  an  honest  debt." 

Argued  before  McCuUum,  C.  J.  and  Mitchell,  Dean,  Fell,  Brown, 
Mestrezat,  Potter,  JJ. 

Calvin  Raybum,  for  appellants,  Ross  Reynolds,  for  appellee. 

Per  Curiam.  In  her  affidavit  of  defense,  Mrs.  Linton  does  not 
aver  that  she  did  not  appear  before  the  deputy  consul  general  and 
separately  acknowledge  her  power  of  attorney  to  Finlay,  and  her 
evasiveness  on  this  point  must  be  regarded  as  her  admission  that  she 
did  so  appear  and  make  the  statutory  acknowledgment.  She,  rather, 
relies  upon  her  averment  that  her  acknowledgment  before  the  deputy 
consul  general  was  invalid,  in  which  she  is  mistaken,  as  is  clearly 
sho\\-n  by  the  learned  judge  below  in  his  references  to  the  several  acts 
of  assembly  upon  the  subject.  In  all  other  respects  the  affidavit  of 
defense  is  insufficient,  and  the  judgment,  for  want  of  its  sufficiency,  is 
affirmed. 

STIFF  V.  NUGENT,  (1843,  U.  S.) 

5  Rob.  217. 

BuUard,  Supreme  Court  of  Louisiana. 

(Extract)  There  is  a  bill  of  exceptions  taken  by  the  defendants, 
to  the  admission  of  the  return  of  a  commission,  purporting  to  have 
been  executed  by  the  vice-consul  of  the  U.  S.  at  Liverpool,  upon  the 
proof  of  his  reputed  character,  and  that  he  acted  as  vice-consul  in 
1837,  and  upon  proof  also  of  the  handwriting  of  said  person.  The 
court  did  not  err.  The  commission  was  addressed  to  the  consul,  or 
vice-consul  of  the  U.  S.,  as  commissioner  named  by  the  court,  and  it 
is  sufficiently  shown,  that  it  was  executed  by  him  in  that  capacity. 

STUEGIS  v.  SLACUM,  (1836,  U.  S.— Argentine) 

18  Pick.  36. 

Wilde,  Supreme  Court  of  Massachusetts. 

Under  the  act  of  congress  of  1792,  c.  24,  empowering  consuls  of  the  United 
States  to  take  poBsession  of  the  personal  estate  left  by  any  citizen  of  the  United 
States  who  shall  die  within  their  consulates,  and  therewith  "to  pay  the  debts 
due  from  his  estate  which  he  shall  have  there  contracted,"  a  consul  is  not  au- 
thorized to  pay  a  claim,  not  reduced  to  a  judgment,  for  damages  for  a  wrongful 
act  committed  by  the  deceased. 

The  defendant,  who  was  a  consul  of  the  United  States  at  Buenos  Ayres,  being 
about  to  visit  the  United  States,  appointed  K.  acting  consul  during  his  absence, 
but  the  charge  d'affaires  of  the  United  States  at  Buenos  Ayrcs  refused  to  recog- 
nise K.  as  such,  and  performed  the  dnties  of  consul  himself,  until  the  appoint- 

354 


CONSULAR  CASES 

ment  of  K.  wrb  approved  by  the  government  of  the  United  States;  and  in  con- 
sequence of  such  refusal,  K.  was  prevented  from  receiving  the  emoluments  of  that 
office  for  several  months.  The  charge  d'  affaires  subsequently  died  intestate,  and 
the  defendant,  in  pursuance  of  the  act  of  congress  of  1792,  c.  24,  took  possession 
of  his  property,  and,  having  sold  it,  transmitted  to  the  plaintiff,  who  was  ap- 
pointed administrator  in  this  state,  an  account  of  the  disposition  made  of  it, 
showing  a  balance  in  favor  of  the  estate,  which  the  defendant  claimed  to  retain 
on  account  of  the  intestate's  refusal  to  recognize  K.  as  acting  consul.  It  was 
held,  that  the  defendant,  by  setting  up  such  claim,  ceased  to  act  under  that  stat- 
ute; that  he  had  no  lien  on  the  property  for  the  alleged  tort  of  the  intestate;  and 
that  an  action  at  law  might  be  maintained  by  the  plaintiff  against  him,  in 
this  state,  to  recover  such  balance. 

Assumpsit.    The  parties  stated  a  case. 

In  April  1825,  John  M,  Forbes,  the  plaintiff's  intestate,  was 
appointed  charge  d'  affaires  of  the  United  States  to  the  government 
of  Buenos  Ayres,  and  continued  to  reside  there  as  such  until  his 
death  in  June  1831.  The  defendant  was  appointed  consul  of  the 
United  States  at  Buenos  Ayres  in  1824,  and  upon  the  death  of  the 
intestate,  under  color  of  his  consular  office,  took  into  his  possession 
certain  personal  property  there,  belonging  to  the  intestate,  and  caused 
it  to  be  sold  by  public  auction,  the  intestate  having  no  legal  representa- 
tive or  other  person  authorized  to  take  charge  of  such  property,  in 
Buenos  Ayres.  From  the  proceeds  of  the  sale,  the  defendant  paid 
certain  debts  due  from  the  intestate  at  Buenos  Ayres ;  and  in  August 
1832,  stated  an  account  of  such  payments  and  of  the  proceeds  of  such 
sale,  showing  a  balance  in  favor  of  the  estate  of  the  deceased,  amount- 
ing to  about  5000  dollars.  The  defendant  alleged  in  the  account,  that 
he  retained  this  balance  in  satisfaction  of  a  claim  against  the  estate 
of  the  intestate.    The  account  was  transmitted  to  the  plaintiff. 

(37)  The  claim  of  the  defendant  referred  to  in  the  account  arose 
from  this  cause.  On  October  31st,  1825,  the  defendant,  being  about  to 
visit  the  United  States,  executed  an  instrument,  whereby,  so  far  as 
he  had  authority,  he  appointed  Robert  Kortright,  a  citizen  of  the 
United  States,  then  residing  at  Buenos  Ayres,  his  agent  in  all  matters 
appertaining  to  the  consular  office  and  acting  consul,  during  the  de- 
fendant's absence  from  Buenos  Ayres.  Kortright  accepted  the  ap- 
pointment, and  the  defendant  gave  notice  thereof  to  the  intestate,  and 
requested  him,  as  charge  d'  affaires,  to  recognize  Kortright  as  such 
acting  consul,  to  present  him  as  such  to  the  government  of  Buenos 
Ayres,  and  to  procure  his  recognition  by  that  government.  But  the 
intestate  refused  to  comply  with  such  request. 

By  this  refusal,  Kortright  was  prevented  from  exercising  the 
duties  of  that  office,  and  from  receiving  the  income  and  emoluments 
thereof,  for  several  months.    The  government  of  the  United  States  af- 

355 


CONSULAR  CASES 

terwards  approved  of  the  appointment  of  Kortright  by  the  defendant, 
as  acting  consul  during  his  absence  from  Buenos  Ayres;  and  the 
secretarj'  of  state  of  the  United  States,  by  a  letter,  dated  February 
16th,  1827,  gave  notice  to  the  intestate  of  such  approval,  and  directed 
him  to  recognize  Kortright  as  acting  consul,  and  to  request  his  recog- 
nition by  the  government  of  Buenos  Ayres.  On  the  receipt  of  this 
letter,  Kortright  was  so  recognized,  and  entered  on  the  duties  of  the 
oflBce. 

The  intestate,  from  October  31st,  1826,  until  he  received  the  let- 
ter from  the  secretary  of  state,  assumed  and  performed  the  duties  and 
functions  of  such  consular  office.  The  defendant  had  no  evidence 
showing  the  amount  of  the  income  and  emoluments  of  the  office  dur- 
ing that  period;  but  he  asserted,  that  they  exceeded  the  balance  of 
the  account.  There  was  no  evidence  that  the  intestate  charged  any 
fees  for  executing  the  duties  of  the  office.  Kortright  testified  in  his 
deposition,  taken  on  the  part  of  the  defendant,  that  there  was  no 
agreement  between  him  and  the  defendant  to  divide  the  fees  of  the 
office. 

If  upon  these  facts  the  plaintiff  was  entitled  to  recover  in  this 
action,  judgment  was  to  be  rendered  in  his  favor  for  such  (38)  dam- 
ages as  the  court  should  order;  otherwise,  judgment  was  to  be  ren- 
dered for  the  defendant. 

C.  P.  Curtis,  for  the  plaintiff. 

J.  Mason,  contra.  The  defendant  is  not  liable  in  any  action  at 
law  to  this  plaintiff.  The  proceedings  should  have  been  in  the  pro- 
bate court,  or  by  a  bill  in  equity.  Under  the  act  of  congress,  of  1792, 
c.  24,  the  defendant  became,  in  fact,  the  administrator  of  the  intestate. 
As  such  he  was  independent  of  the  administrator  in  this  state,  and 
not  subordinate  or  ancillary  to  him.  There  is  a  total  want  of  privity 
of  contract  between  the  plaintiff  and  the  defendant,  and  the  law  will 
not  raise  an  assumpsit.  Grout  v.  Chamberlin,  4  Mass.  R.  611 ;  1  Wms. 
on  Executors,  595;  ITagthorp  v.  Hook,  1  Gill  &  Johns.  270.  The 
power  of  an  admini.strator  is  limited  to  the  jurisdiction  within  which 
administration  is  granted.  The  property  in  Buenos  Ayres  did  not 
vest  in  the  administrator  here,  and  could  not  be  interfered  vnth.  by 
him.  Goodwin  v.  Jones,  3  Mass.  R.  514 ;  Stevens  v.  Gaylord,  11  Mass. 
R.  236;  Hooker  v.  Olmstead,  6  Pick.  481;  Harvey  v.  Richards,  1 
Mason,  381. 

"WILDE.  J.  delivered  the  opinion  of  the  court.  This  is  an  action 
of  assumpsit,  in  which  the  plaintiff  claims  to  recover  a  balance  in  the 
hands  of  the  defendant,  in  the  capacity  of  administrator  of  the  goods 
and  estate  of  John  M.  Forbes,  lately  deceased.     The  intestate  was 

356 


CONSULAR  CASES 

charge  d'  affaires  of  the  government  of  the  United  States  to  the  gov- 
ernment of  Buenos  Aj^res,  and  died  at  Buenos  Ayres  in  the  year  1831. 
At  the  time  the  defendant  was  consul  of  the  United  States  at  that  port, 
in  the  exercise  of  the  duties  of  that  office ;  and  thereupon  took  into  his 
possession  certain  personal  property  of  the  deceased,  there  being,  and 
caused  the  same  to  be  sold  at  public  auction  and  out  of  the  proceeds 
paid  certain  debts  of  the  intestate  due  at  Buenos  Ayres,  and  after- 
wards transmitted  an  account  thereof  to  the  plaintiff,  in  which  he 
acknowledges  a  balance  in  his  hands,  which  he  claims  to  retain  on  ac- 
count of  a  claim  he  had  on  the  estate  of  the  intestate. 

These  proceedings  are  authorized  by  the  act  of  congress  of  the 
United  States,  1792,  c.  24,  §  2. 

The  defence  set  up  is,  that  the  defendant  was,  by  virtue  of  (39) 
his  consular  office  and  such  act  of  congress,  an  administrator  of  the 
estate  of  the  intestate  within  the  government  of  Buenos  Ayres;  that 
he  is  only  liable  to  account  in  the  manner  prescribed  by  statute ;  and 
that  he  is  not  amenable  to  the  plaintiff  within  this  jurisdiction,  and 
especially  not  in  an  action  at  law.  There  can  be  no  doubt  that  this 
defence  would  prevail,  if  the  defendant  had  been  appointed  admin- 
istrator in  the  usual  manner.  When  there  are  two  or  more  admin- 
istrators appointed  on  the  estate  of  a  person  deceased,  under  differ- 
ent governments,  they  are  in  no  respect  accountable  to  each  other ;  but 
each  must  administer  the  estate  of  the  deceased  within  the  jurisdiction 
where  he  was  appointed,  and  is  to  account  for  it  to  the  court  from 
whom  he  received  his  appointment.  And  that  court  may  order  dis- 
tribution according  to  the  laws  of  the  country  where  the  deceased 
had  his  domicile  at  the  time  of  his  death;  or  may  order  the  balance 
to  be  transmitted  to  the  administrator  appointed  in  the  country 
where  he  had  his  dimicile.  Perhaps  after  such  an  order  of  transmis- 
sion, an  action  would  lie  in  favor  of  the  principal  administrator;  for 
where  any  one  is  under  a  legal  obligation  to  pay,  the  law  will  imply  a 
promise.  But  however  this  may  be,  it  is  quite  clear  that  without 
such  order  no  such  action  could  be  maintained,  the  administrations 
being  distinct,  and  there  being  no  privity  between  the  parties. 

We  are  however  of  opinion,  that  the  defendant  is  not  to  be  re- 
garded as  an  ordinary  administrator,  but  as  a  receiver  or  agent  ap- 
pointed by  law,  and  whose  duties  are  prescribed  by  the  statute. 
These  duties  in  some  respects  resemble  those  of  ordinary  adminis- 
trators ;  but  in  one  respect  there  is  an  important  difference. 

The  act  provides,  that  the  consuls  shall  coUect  the  debts  due  to 
the  deceased  in  the  coimtry  M^here  he  died,  and  pay  the  debts  due 
from  his  estate  which  are  contracted  there;  shall  sell  the  estate  and 
remit  the  balance  remaining  in  their  hands  to  the  treasury  of  the 

357 


CONSULAR  CASES 

United  States,  to  be  holden  in  trust  for  the  legal  claimants.  But  if 
at  any  time  before  such  transmission,  the  legal  representative  of  the 
deceased  shall  appear  and  demand  his  effects  in  their  hands,  they 
shall  deliver  them  up,  being  paid  their  fees,  and  shall  cease  their  pro- 
ceedings. If  the  defendant  had  complied  with  the  directions  of  the 
statute,  and  (40)  had  transmitted  the  balance  in  his  hands  to  the 
treasur}',  as  he  was  bound  to  do,  he  would  have  been  protected  by  the 
statute.  But  as  he  elected  to  retain  the  balance,  to  answer  his  own 
claim,  he  cannot  now  defend  himself  under  the  statute.  After  setting 
up  his  o^\^l  claim,  he  ceased  to  act  under  the  statute;  and  unless  his 
claim  was  a  valid  one,  he  was  bound  to  pay  over  the  balance  to  the 
plaintiff,  whom  he  has  recognized  as  the  legal  representative  of  the 
deceased ;  and  this  by  the  express  words  of  the  statute.  Ever  since 
transmitting  his  account  to  the  plaintiff,  he  has  ceased  his  proceed- 
ings under  the  act  of  congress,  and  the  only  question  now  is,  whether 
he  has  a  right  to  retain  the  balance  to  answer  his  o^vn  claim.  There 
is  no  pretence  that  there  are  any  remaining  debts  due  in  Buenos 
Ayres,  and  if  there  were,  the  defendant  is  no  longer  liable  for  the  pay- 
ment. Has  he  then  any  lien  on  the  money  in  his  hands  on  account  of 
his  own  claim?  The  general  rule  is,  that  a  factor  has  no  lien  for  a 
general  balance  in  respect  of  debts  which  arise  prior  to  the  time  at 
which  his  character  of  factor  commenced.  Montague,  35;  Houghton 
V.  Matthews,  3  Bos.  &  Pul.  485.  And  we  perceive  no  good  reason  why 
the  same  rule  should  not  be  applied  in  the  present  case.  But  it  is  not 
necessary  to  decide  the  present  case  upon  this  principle ;  for  I  appre- 
hend it  is  very  clear,  that  no  factor  or  agent  has  any  general  lien  in 
respect  to  torts.  He  may  retain  the  balance,  to  be  sure,  and  suffer 
himself  to  be  sued,  and  obtain  a  set-off  through  the  medium  of  a 
cross  action ;  but  he  has  no  lien,  and  no  legal  right  to  retain  the  money 
in  his  hands. 

And  there  is  another  difficulty.  We  do  not  perceive  any  legal 
ground  on  which  the  defendant's  claim  can  be  sustained.  Kortright, 
if  any  one,  was  the  party  injured  by  the  supposed  misconduct  of  the 
intestate.  He  would  have  been  entitled  to  the  fees  and  emoluments  of 
the  office  in  the  absence  of  the  defendant,  and  he  testifies,  that  there 
was  no  agreement  between  him  and  the  defendant  to  divide  the  fees. 
And  if  there  had  been  such  an  agreement,  the  intestate  would  have 
been  still  liable  only  to  Kortright. 

But  at  all  events,  the  defendant  cannot  retain  the  balance  in  his 
hands  on  this  account.  The  act  of  congress  only  authorizes  him  to  pay 
the  debts  of  the  intestate  contracted  in  Buenos  (41)  Ayres,  and  not  to 
pay  damages  for  wrongful  acts,  which,  by  the  principles  of  the  com- 
mon law,  are  not  recoverable  after  the  death  of  the  tortfeasor. 

358 


CONSULAR  CASES 

It  appears  to  us,  therefore,  that  there  is  no  legal  ground  on 
which  the  defense  can  be  maintained ;  and  according  to  the  agreement 
of  the  parties,  judgment  is  to  be  rendered  for  the  plaintiff. 

STJGENHEIMER,  IN  RE,  (1899,  U.  S.) 
91  Fed.  Eep.  744. 
Brown,  District  Court. 

In  bankruptcy. 

BROWN,  District  Judge.  The  referee  in  charge  has  certified  to 
the  court  for  decision  the  question  whether  certain  powers  of  attor- 
ney had  been  properly  executed  so  as  to  allow  a  vote  by  proxy  upon 
a  claim  of  the  firm  of  George  C.  Mecke  &  Co.  of  Bremen,  Germany, 
against  the  bankrupt.  The  creditor  firm  executed  before  the  United 
States  consul  at  Bremen  on  February  12,  1897,  a  very  broad  power  of 
attorney,  which  I  find  was  sufficient  to  authorize  proof  of  their  claim 
in  bankruptcy,  and  a  vote  in  the  bankruptcy  proceedings,  either  by 
the  attorneys,  or  by  their  substitutes,  if  the  powers  were  properly  ex- 
ecuted. 

It  is  objected  that  rule  21  of  the  supreme  court  in  bankruptcy 
(18  Sup.  Ct.  VII.)  subd.  5,  provides  only  that  "the  execution  of  any 
letter  of  attorney  to  represent  a  creditor . . .  may  be  proved  or  acknowl- 
edged before  a  referee  or  a  United  States  commissioner,  or  a  notary 
public,"  but  does  not  admit  proof  or  acknowledgment  before  a  for- 
eign consul. 

The  language  of  the  rule,  it  will  be  observed,  is  not  exclusive, 
and  the  different  clauses  taken  together  seem  to  indicate  that  the  proof 
of  claims  of  foreign  creditors  was  not  within  the  contemplation  of  the 
court  in  framing  this  part  of  the  twenty-first  rule.  Section  20  of  the 
act  of  congress,  provides  that  "oaths"  required  by  the  act  may  be 
administered".  . .  (3)  by  diplomatic  or  consular  officers  of  the  United 
States  in  any  foreign  country. "  It  is  hardly  to  be  supposed  that  the 
court  could  have  intended  to  exclude  the  proof  of  foreign  letters  of 
attorney  before  such  officers  as  United  States  consuls,  when  these  are 
expressly  empowered  by  the  act  to  administer  oaths  in  bankruptcy 
proceedings.  I  therefore  decide  that  the  acknowledgment  of  this 
power  of  attorney  was  sufficient. 

2.  Mecke  &  Co.  of  New  York,  the  attorneys  named  in  the  above 
power  of  attorney,  by  Hugo  Volkening,  one  of  its  members,  executed 
on  December  28,  1898,  in  New  York,  a  letter  of  attorney  appointing 
three  substitutes  to  vote  at  creditor's  meetings  as  proxies  for  the 
Bremen  firm,  and  acknowledged  it  before  E.  A.  Pfeffer,  one  of  the 
substitutes.     This  power  authorizes  the  three  substitutes  or  "either 

359 


CONSULAR  CASES 

one  of  them"  to  vote  at  creditors'  meetings  upon  the  claim  of  the 
(745)  Bremen  firm.  I  think  the  acknowledgment  before  Pfefler  was 
irregular  as  respects  him.  I  see  no  reason,  however,  why  it  should  not 
be  valid  as  respects  either  of  the  others,  so  that  either  of  the  other 
two  substitutes  may  lawfully  act  imder  it. 
Ordered  accordingly. 

TAETAGLIO,  IN  RE,  (1895,  U.  S.— Italy) 
33  N.  Y.  Supp.  1121;   12  Misc.  45;  5  Moore  124. 
Silknmn,  Surrogate's  Court,  New  York. 

CtoNSULS — AUTHOiUTY — COLLECTINO   MONEY   FOR   COUNTEYMEN 

A  consul  of  a  foreign  country  in  the  United  States  has  authority  to  receive 
the  distributive  shares  to  which  persons  residing  in  his  country  are  entitled  from 
the  estate  of  a  person  dying  in  the  United  States. 

Application  by  the  Italian  consul  general  to  compel  the  payment 
to  him  of  the  distributive  shares  of  the  widow  and  minor  children  of 
Libretto  Tartaglio,  deceased.    Granted. 

D.  Humphreys  and  C.  H.  Ostrander,  for  petitioner. 
"Wilson  Brown,  Jr.,  for  county  treasurer. 

SILKMAN,  S.  Application  is  made  by  the  consul  general  of 
Italy  at  New  York  to  have  paid  to  him  the  distributive  shares  of 
(1122)  the  widow  and  five  minor  children  in  the  estate  of  Libretto 
Tartaglio,  an  Italian  subject,  who  died  leaving  personal  property 
which  has  been  administered  in  this  country,  and  which  distributive 
shares  have  been  deposited  with  the  county  treasurer  pursuant  to  a 
decree  of  this  court.  The  widow  and  children  are  residents  and  sub- 
jects of  the  kingdom  of  Italy.  The  county  treasurer  opposes  the  ap- 
plication upon  the  ground  that  the  consul  general  has  no  authority  to 
receive  such  distributive  shares,  and  give  such  an  acquittance  as 
will  relieve  him  from  responsibility.  The  rights  of  subjects  of  foreign 
countries,  both  as  to  their  persons  and  property,  largely  depend  upon 
treaty  provisions.  The  treaty  between  the  United  States  and  the 
kingdom  of  Italy  provides  that  consuls  general  "may  have  recourse 
to  the  authorities  of  the  respective  countries  within  their  respective 
districts,  whether  federal  or  local,  judicial  or  executive,  in  order  to 
defend  the  rights  and  interests  of  their  countrymen."  The  term  "de- 
fend," as  used,  is  to  be  given  the  broadest  meaning,  and  includes  the 
power  to  maintain  affirmatively  the  rights  of  the  consul's  countrymen, 
and  our  local  as  well  as  federal  judiciary  must,  in  obedience  to  the 
treaty,  recognize  such  rights.    But,  in  the  absence  of  such  treaty  pro- 

360 


CONSULAR  CASES 

vision,  a  foreign  consul  would  have  much  the  same  power,  "We  find 
the  rule  laid  down  in  Kent:  "The  practice  of  our  courts  is  that  a 
foreign  consul  may  assert  and  defend  as  complainant  party  the  rights 
and  property  of  a  person  of  his  nation."  The  consul  of  a  foreign 
nation  recognized  by  the  United  States  is  competent  to  defend  and 
watch  over  the  interests  of  persons  of  his  nation,  and  may  bring  suits 
for  such  purpose  without  any  special  authority  from  the  parties  in 
interest.  The  Bello  Corrunes,  6  Wheat.  168.  The  court  says,  in  the 
case  cited,  "that  a  vice-consul,  duly  recognized  by  our  government,  is 
a  competent  party  to  assert  or  defend  the  rights  of  property  of  the 
individuals  of  his  nation  in  any  court  having  jurisdiction  of  causes 
affected  by  the  application  of  international  law.  To  watch  over  the 
rights  and  interests  of  their  subjects  wherever  the  pursuits  of  com- 
merce may  draw  them  or  the  vicissitudes  of  human  affairs  may  force 
them  is  the  great  object  for  w^hich  consuls  are  deputed  by  their  sov- 
ereigns, and,  in  a  country  where  laws  govern  and  justice  is  sought  for 
in  courts  only,  it  would  be  a  mockery  to  preclude  them  from  the  only 
avenue  through  which  their  course  lies  to  the  end  of  their  mission. 
The  long  and  imiversal  usage  of  the  courts  of  the  United  States  has 
sanctioned  the  exercise  of  this  right,  and  it  is  impossible  that  any  evil 
or  inconvenience  can  flow  from  it."  Foreign  consuls  have  authority 
and  power  to  administer  on  the  estates  of  their  fellow  subjects  de- 
ceased v/ithin  their  territorial  consulate.  "Wheat.  Int.  Law  (2d  Eng. 
Ed.)  151;  Wools.  Int.  Law,  §  96:  The  right  to  demand  and  sue  for 
necessarily  implies  the  authority  to  acquit  and  release.  In  case  of  a 
debt  due  by  a  resident  of  this  state  to  the  widow  and  children  of 
Libretto  Tartaglio,  there  would  seem  to  be  no  doubt  not  only  of  the 
consul's  power,  but  his  duty,  under  the  authorities,  to  demand  and 
collect  it,  and,  if  so,  I  can  see  no  reason  in  principle  that  would  pre- 
vent his  demanding  and  receiving  moneys  or  property  (1123)  depos- 
ited in  court  belonging  to  a  subject  of  such  consul 's  country.  Neither 
can  I  see  that  the  infancy  of  some  of  the  parties  affects  or  limits  the 
right  or  power  of  the  consul.  The  question  as  to  what  disposition  may 
be  made  of  the  property  after  the  consul  has  received  and  exported  it 
is  something  with  which  our  courts  have  nothing  to  do ;  that  is  to  be 
settled  by  the  laws  of  authority  of  the  government  to  which  the  for- 
eign subject  owes  allegiance.  An  order  will  be  made  directing  the 
county  treasurer  to  pay  the  distributive  shares  of  the  widow  and  chil- 
dren of  Libretto  Tartaglio  in  his  estate,  deposited  with  said  county 
treasurer  pursuant  to  the  decree  of  this  court,  to  the  consul  general 
of  Italy  at  New  York,  upon  his  executing  and  delivering  a  proper  re- 
ceipt therefor,    Ordered  accordingly. 


361 


CONSULAR  CASES 
TELEFSEN  v.  FEE,  (1897,  U.  S.— Norway) 

46    N.    E.    562;    16S    Mass.    18S. 

Lathrop,  Supreme  Court  of  Massachusetts. 

Exceptions  from  superior  court,  Suffolk  county;  John  Hopkins, 
judge. 

Action  by  one  Telefsen  against  one  Fee  for  assault  and  battery 
committed  by  defendant  in  arresting  plaintiff.  There  was  a  verdict 
for  defendant,  and  plaintiff  brings  exceptions.    Sustained. 

The  substantial  facts  set  forth  in  the  bill  of  exceptions  are  as  fol- 
lows: Defendant  was  a  constable  of  the  city  of  Boston.  One  Jo- 
hannessen  sued  out  a  writ  from  the  municipal  court  of  that  city  to  re- 
cover wages  alleged  to  be  due  him  as  one  of  the  crew  of  a  steamship  of 
which  Telefsen  was  captain,  and  on  this  writ  an  affidavit  had  been 
put,  signed  by  a  master  in  chancery,  authorizing  the  arrest,  both  writ 
and  affidavit  being  in  proper  form.  Telefsen  was  a  Norwegian  sub- 
ject in  command  of  the  steamship,  which  was  a  Norwegian  vessel 
flying  the  Norwegian  flag,  and  was  about  to  leave  the  port.  Johann- 
essen  was  a  Norwegian,  and  had  shipped  at  New  York  for  the  run  to 
Boston  without  signing  shipping  papers.  He  left  the  ship  at  the 
latter  port,  "because  his  term  of  service  had  expired."  The  arrest 
was  made  on  the  deck  of  the  vessel,  while  she  was  lying  on  the 
side  of  the  wharf  in  Boston,  at  a  place  within  the  territorial  jurisdic- 
tion of  the  municipal  court.  Defendant  was  informed  before  mak- 
ing the  arrest  that  the  vessel  was  Norwegian;  that  Telefsen  was  a 
Norwegian  subject,  and  was  captain;  and  that  the  claim  would  be 
adjusted  at  the  consulate  of  Sweden  and  Norway,  there  being  such 
consulate  in  Boston.  After  the  arrest  defendant  detained  Telefsen 
on  the  vessel  until  he  paid,  under  protest,  the  amount  alleged  to  be 
due.  Plaintiff  asked  the  court  to  rule  that,  by  the  treaty  between 
the  United  States  and  the  kingdom  of  Sweden  and  Norway,  he  was 
at  the  time  exempt  from  arrest,  and  that  the  process  was  not  sufficient 
to  justify  the  arrest  under  the  circumstances  disclosed,  plaintiff  being 
a  Norwegian  and  upon  and  in  command  of  a  Norwegian  vessel;  but 
the  court  declined,  upon  all  the  evidence,  so  to  rule,  and  ruled  that 
defendant  was  justified  in  making  the  arrest,  unless  the  jury  found 
that  he  used  excessive  force.  Plaintiff  excepted  to  the  ruling  and 
the  refusal  to  rule,  and  the  jury  returned  a  verdict  for  the  defendant. 

John  Lowell  and  Edward  S.  Dodge,  for  plaintiff.  Bordman  Hall, 
for  defendant. 

LATHROP,  J.  The  municipal  court  of  the  city  of  Boston  had 
no  jurisdiction  of  the  action  brought  against  the  plaintiff  in  this  case 
for  wages  alleged  to  be  due  one  Johannessen,  and  the  writ  upon  which 

362 


CONSULAR  CASES 

the  plaintiff  was  arrested  on  mesne  process  was  of  no  effect.  By  arti- 
cle 13  of  the  treaty  between  the  United  States  and  Sweden  and  Nor- 
way of  1827  (8  Stat.  352),  it  is  provided  that  "the  consuls,  vice  con- 
suls, or  commercial  agents,  or  the  persons  duly  authorized  to  supply 
their  places,  shall  have  the  right,  as  such,  to  sit  as  judges  and  arbi- 
trators in  such  differences  as  may  arise  between  the  captains  and 
crews  of  the  vessels  belonging  to  the  nation  whose  interests  are  com- 
mitted to  their  charge,  without  the  interference  of  the  local  authorities, 
unless  the  conduct  of  the  crews  or  of  the  captain  should  disturb  the 
order  or  tranquillity  of  the  country ;  or  the  said  consuls,  vice  consuls, 
or  commercial  agents  should  require  their  assistance  to  cause  their 
decisions  to  be  carried  into  effect  or  supported.  It  is,  however,  under- 
stood that  this  species  of  judgment,  or  arbitration,  shall  not  deprive 
the  contending  parties  of  the  right  they  have  to  resort,  on  their  re- 
turn, to  the  judicial  authority  of  their  country."  There  are  similar 
treaties  with  other  countries,  including  one  with  Prussia  in  1828  (8 
Stat.  382).  Many  of  these  treaties  are  referred  to  in  7  Am.  Law  Rev. 
417.  Later  treaties  have  been  made  with  the  Netherlands  in  1855 
(10  Stat.  1155),  with  Denmark  in  1861  (13  Stat.  605),  with  Germany 
in  1871  (17  Stat.  921),  and  with  Italy  in  1878  (20  Stat.  729).  By 
article  6  of  the  constitution  of  the  United  States,  it  is  declared  that 
"all  treaties  made,  or  which  shall  be  made  under  the  authority  of  the 
United  States  ,  shall  be  the  supreme  law  of  the  land ;  and  the  judges 
in  every  state  shall  be  bound  thereby,  anything  in  the  constitution  or 
laws  of  any  state  to  the  contrary  notwithstanding."  Such  a  treaty 
as  that  with  Sweden  and  Norway  has  been  almost  uniformly  held  to 
take  away  all  right  of  action  for  wages  in  the  courts  of  this  country, 
by  a  seaman  coming  within  the  scope  of  the  treaty,  whether  the 
action  be  in  rem  or  in  personam.  Norberg  v.  Hillgreu,  5  N.  Y. 
Leg.  Obs.  177;  The  Elwine  Kreplin,  9  Blatchf.  438,  Fed.  Cas.  No. 
4,  426,  where  the  question  is  considered  at  length;  The  Salomoni,  29 
Fed.  534 ;  The  Burchard,  42  Fed.  608 ;  The  Marie,  49  Fed.  286 ;  The 
Welhaven,  55  Fed.  80.  In  The  Amalia,  3  Fed.  652,  jurisdiction  was 
entertained  by  Judge  Fox  of  the  United  States  district  court  in  Maine 
of  a  libel  against  a  Swedish  vessel,  on  the  ground  that  there  was  no 
consular  representative  of  Sweden  in  the  district  of  Maine.  But  this 
case  has  no  bearing  upon  the  one  before  us.  An  examination  of  the 
treaties  and  authorities  above  cited  makes  it  plain  that  the  court  has 
no  discretion  in  the  matter,  and  that  the  local  authorities  have  no 
right  to  interfere.  "Where  jurisdiction  is  given  by  a  treaty  to  a  con- 
sul, vice  consul,  or  a  commercial  agent,  he  alone  has  authority  to  act 
in  determining  in  the  first  instance  whether  wages  are  due,  and  the 
amount. 

363 


CONSULAR  CASES 

(664)  It  is  to  be  remembered  that  the  United  States  govern- 
ment has  the  same  right  by  the  treaty  in  regard  to  its  vessels  in  Nor- 
way, and  this  right  is  insisted  upon  by  our  government.  In  the 
United  States  consular  regulations  of  1888  (page  25,  par.  66),  under 
the  title  "Jurisdiction  over  Dispute  between  Masters,  Officers,  and 
Crews,"  appears  the  following:  "Exclusive  jurisdiction  over  such 
disputes  in  the  vessels  of  the  United  States,  including  questions  of 
wages,  is  conferred  by  treaties  or  conventions  with"  several  govern- 
ments named,  and,  among  them,  Sweden  and  Norway.  And  on  page 
92.  par.  273,  is  also  the  following:  *'In  many  instances,  by  treaty  and 
consular  convention,  the  United  States  have  secured  to  their  consular 
officers  jurisdiction  over  questions  of  wages,  shipment,  and  discharge 
of  seamen." 

The  bill  of  exceptions  is  not  so  full  as  it  should  be  as  to  what 
occurred  on  the  arrival  of  the  ship  in  Boston.  It  is  merely  said  that 
"  Johannessen  left  the  ship  at  Boston  because  his  term  of  service  had 
expired."  It  does  not  appear  whether  he  had  been  discharged,  or 
had  left  without  permission  of  the  master,  though,  perhaps,  the  more 
reasonable  interpretation  of  the  exceptions  is  that  the  statement  of 
the  cause  of  his  leaving  precludes  our  assuming  other  reasons  to  exist. 
However,  this  may  be,  whether  he  was  discharged  or  not,  there  was 
still  the  question  of  wages  to  be  determined;  and  the  defendant  had 
been  informed,  before  he  made  the  arrest,  that  the  claim  of  Johannes- 
sen  would  be  adjusted  at  the  consulate  of  the  kingdom  of  Sweden 
and  Norway.  It  seems  to  us  impossible  to  say  that  there  was  not  such 
a  difference  between  the  master  and  Johannessen  that  the  consul  had 
not  exclusive  jurisdiction  in  the  premises.  The  facts  in  the  case 
of  The  Elwine  Kreplin  are  not  fully  set  forth  in  the  report  in  9 
Blatchf.  438,  Fed.  Cas.  No.  4,  426.  But  they  are  found  at  length 
in  the  report  of  the  case  in  the  district  court  (4  Ben.  413,  Fed.  Cas. 
No.  4,427).  It  was  there  considered  by  Judge  Benedict  that  the 
connection  of  the  men  with  the  ship  was  severed  by  mutual  consent, 
and  that  they  were  entitled  to  their  wages.  While  this  view  of  the 
facts  was  not  fully  assented  to  by  Judge  Woodruff,  his  opinion  was 
that,  although  the  men  were  entitled  to  their  discharge  and  to  be 
paid  off,  and  the  master  was  in  the  wrong,  yet  this  matter  of  difference 
"was  left  by  the  treaty  in  the  hands  of  the  consul,"  and  the  libel  of 
the  seamen  was  dismissed.  In  The  Burchard,  42  Fed.  608,  Judge 
Toulmin  dismissed  a  libel  for  wages  against  a  German  vessel  brought 
by  an  American  seaman  who  had  shipped  on  board,  and  who  claimed 
to  be  entitled  to  a  discharge.  He  stated,  however,  that  he  was  inclined 
to  take  jurisdiction,  if  the  fact  had  been  proved  that  a  discharge  had 
been  granted.     In  tlif^  latter  case  of  The  Welliaven,  55  Fed.  80,  a 

364 


CONSULAR  CASES 

libel  was  brought  against  a  Norwegian  steamship  by  a  citizen  of  the 
United  States,  for  damages  and  for  wages,  alleging  that  he  shipped  on 
the  vessel  at  Mobile,  for  a  round  voyage  to  Tampico,  and  that,  on  his 
arrival  in  Mobile  Bay  on  the  return  trip,  he  was  put  ashore,  manacled, 
and  finally  discharged  at  Mobile,  without  full  pay.  On  the  inter- 
vention of  the  Norwegian  consul,  claiming  jurisdiction.  Judge  Toul- 
min  sustained  the  consul's  position,  and  dismissed  the  libel.  The 
case  appears  to  have  been  heard  on  exceptions  to  the  libel,  as  the  judge 
concludes  the  opinion  thus:  "I  am,  therefore,  constrained  to  sus- 
tain the  exceptions  to  the  libel,  and  to  order  that  the  libel  be  dis- 
missed." 

It  appears,  therefore,  that  the  consul  of  Sweden  and  Norway  had 
exclusive  jurisdiction  of  the  controversy  or  difference  between  J'ohan- 
nessen  and  Telefsen,  and  that  the  municipal  court  of  the  city  of  Bos- 
ton had  no  jurisdiction  either  of  the  subject-matter  or  of  the  persons 
of  the  parties  in  the  action  which  the  seaman  saw  fit  to  bring  against 
the  master.  The  officer  who  arrested  the  master  was  therefore  acting 
illegally  and  without  justification,  and  is  liable  in  this  action,  unless 
he  is  protected  by  virtue  of  his  writ.  This  presents  a  question  of 
some  difficulty,  and  one  which  is  not  wholly  free  from  doubt.  Before 
proceeding  to  consider  the  principal  question,  it  may  be  well  to  state 
briefly  certain  principles  laid  down  by  the  courts  in  regard  to  which 
there  is  little  or  no  dispute  .  "Where  the  process  is  in  due  form,  and 
comes  from  a  court  of  general  jurisdiction  over  the  subject  matter, 
the  officer  is  justified  in  acting  according  to  its  tenor,  even  if  irregu- 
larities making  the  process  voidable  have  previously  occurred.  Sava- 
cool  v.  Boughton,  5  Wend.  171 ;  Earl  v.  Camp,  16  Wend.  563 ;  Ela  v. 
Shepard,  32  N.  H.  277;  Dwinnels  v.  Boynton,  3  Allen,  310;  Chase  v. 
Ingalls,  97  Mass.  524 ;  Bergin  v.  Hayward,  102  Mass.  414 ;  Chesebro  v. 
Barme,  163  Mass.  79,  82,  39  N.  E.  1033;  Howard  v.  Proctor,  7  Gray, 
128;  Hubbard  v.  Garfield,  102  Mass.  72;  Rawson  v.  Spencer,  113  Mass. 
40 ;  Hines  v.  Chambers,  29  Minn.  7,  11  N.  W.  129 ;  Hann  v.  Lloyd, 
50  N.  N.  J.  Law,  1,  11  Atl.  346.  Where,  however,  the  process  is 
void  on  its  face,  the  offi.cer  is  not  protected.  Clark  v.  Woods,  2 
Exch.  395;  Pearce  v.  Atwood,  L3  Mass.  324;  Eames  v.  Johnson,  4 
Allen,  382 ;  Thurston  v.  Adams,  41  Me.  419 ;  Harwood  v.  Siphers,  70 
Me.  464 ;  Brown  v.  Howard,  86  Me.  342,  29  Atl.  1094 ;  Rosen  v.  Fischel, 
44  Conn.  371 ;  Prazier  v.  Turner,  76  Wis.  562,  45  N.  W.  411 ;  Sheldon 
V.  Hill,  33  Mich.  171;  Poulk  v.  Slocum,  3  Blackf.  421.  An  officer  is 
bound  to  know  the  law,  and  to  know  the  jurisdiction  of  the  court  whose 
officer  he  is.  If,  therefore,  he  does  not  act  in  obedience  to  a  precept 
of  the  court,  and  the  court  has  no  jurisdiction  in  the  matter,  either 
because  the  statute  under  which  the  court  acted  is  unconstitutional,  or 

365 


CONSULAR  CASES 

there  is  a  want  of  jurisdiction  for  any  other  reason,  it  would  seem 
that  the  officer  is  not  protected.  There  are  many  authorities  to  this 
effect.  Fisher  v.  McGirr,  1  Gray,  45 ;  Warren  v.  Kelley,  80  Me.  512, 
15  Atl.  49:  (565)  Batchelder  v.  Currier.  45  N.  11.  460;  Thurston  v. 
Martin.  5  Mason,  499,  Fed.  Cas.  No.  14,018 ;  Campbell  v.  Sherman,  35 
Wis.  103 ;  Summer  v.  Beeler,  50  Ind.  341 ;  The  Marshalsea,  10  Coke, 
68b;  Crepps  v.  Burden.  Cowp.  640;  Bfoanti  v.  Compton,  8  Term  R. 
424 ;  Watson  v.  Bodell,  14  Mees.  &  W.  57.  Whether  this  doctrine  ap- 
plies to  a  case  like  the  present,  where  the  court  had  general  juris- 
diction over  the  subject-matter,  but  no  jurisdiction  over  the  particular 
controversy  between  the  parties,  and  no  jurisdiction  over  their  per- 
sons, we  need  not  decide,  because,  on  the  facts  in  this  case,  we  are  of 
opinion  that  the  officer  may  be  held  liable.  He  was  informed,  before 
making  the  arrest,  that  the  vessel  was  a  Norwegian  vessel,  and  the 
captain  of  the  vessel  a  Norwegian,  and  that  the  claim  of  Johannessen 
would  be  adjusted  at  the  consulate  of  the  kingdom  of  Sweden  and 
Norway.  Being  informed  of  the  facts,  he  was  bound  to  know  the 
law  that  the  court  had  no  jurisdiction  over  the  person  of  the  captain 
or  the  subject-matter  of  the  action.  Sprague  v.  Birchard,  1  Wis.  457, 
464,  469;  Grace  v.  Mitchell,  31  Wis.  533.  539,  545;  Leachman  v. 
Dougherty,  81  111.  324,  327,  328. 

There  are.  without  doubt,  cases  which  lay  down  a  more  stringent 
rule,  and  say  that  the  officer  need  not  look  beyond  his  precept,  and  is 
not  bound  to  take  notice  of  extrinsic  facts;  but  all  of  these  are  cases 
which  are  distinguishable  from  the  case  at  bar.  The  leading  case 
on  this  subject  is  People  v.  Warren,  5  Hill,  440.  The  defendant 
was  indicted  for  assaulting  an  officer.  The  inspectors  of  an  election 
issued  a  warrant  to  a  constable  for  the  arrest  of  the  defendant  for 
interrupting  the  proceedings  at  the  election  by  disorderly  conduct  in 
the  presence  of  the  inspectors.  The  defendant  offered  to  show  that 
he  had  not  been  in  the  presence  of  the  inspectors  at  any  time  during 
the  election,  and  that  the  constable  knew  it.  This  was  held  to  be 
rightly  excluded.  The  opinion  is  per  curiam,  and  is  very  brief. 
While  it  says  that  the  inspectors  had  no  jurisdiction  of  the  subject- 
matter,  yet  the  clear  meaning  is  that,  if  the  defendant  was  not  in  their 
presence,  thf'y  acted  in  excess  of  their  jurisdiction.  Knowledge  by  an, 
officer  that  a  man  was  innocent  would,  of  course,  be  no  excuse  for 
assaulting  the  officer,  if  he  arrested  the  man  upon  a  warrant  from  a 
court  of  competent  jurisdiction.  An  officer  in  a  criminal  case  is 
obliged  to  obey  his  warrant,  whatever  his  knowledge  may  be.  This 
disposes,  also,  of  the  case  of  State  v.  Weed,  21  N.  H.  262.  Several 
cases  have  been  called  to  our  attention  in  which  there  are  dicta  to  the 
effect  that  an  officer  is  not  bound  to  look  beyond  his  precept,  even  if 

366 


CONSULAR  CASES 

he  has  knowledge  that  the  court  has  no  jurisdiction ;  but  an  examina- 
tion of  these  cases  shows  that  the  facts  known  to  the  officer  did  not 
affect  the  jurisdiction  of  the  court,  but  related  to  irregularities  in  the 
prior  proceedings,  or  to  matters  merely  of  defense  to  the  action.  See 
cases  above  cited.  Of  course,  where  the  court  has  jurisdiction  of  the 
subject-matter  and  of  the  parties  to  an  action,  knowledge  on  the  part 
of  the  officer  or  information  to  him  that  there  is  some  irregularity  in 
the  proceeding  can  make  no  difference.  Underwood  v.  Robinson,  106 
Mass.  296,  Nor  can  it  make  any  difference  that  the  officer  is  informed 
that  there  is  a  defense  to  the  action,  such  as  that  the  defendant  has 
a  receipt  (Twitchell  v.  Shaw,  10  Cush.  46)  ;  or  a  discharge  in  insol- 
vency (Wilmarth  v.  Burt,  7  Mete.  [Mass.]  257)  ;  or  that  the  defend- 
ant is  an  infant  (Cassier  v.  Fales,  139  Mass.  461,  1  N.  E.  922).  But 
the  question  of  jurisdiction  is  a  more  serious  matter,  and  if  facts 
are  brought  to  the  attention  of  the  officer  about  which  he  can  have  no 
reasonable  doubt,  and  he  knows,  or  is  bound  to  know,  that  on  these 
facts  the  court  has  no  jurisdiction  of  the  controversy,  he  may  well  be 
held  to  proceed  at  his  peril.  "We  can  see  no  hardship  upon  the  officer 
in  holding  him  responsible  in  this  case  for  an  illegal  arrest  and  for  a 
false  imprisonment.  If  an  officer  has  reasonable  cause  to  doubt  the 
lawfulness  of  an  arrest,  he  may  demand  from  the  plaintiff  a  bond  of 
indemnity,  and  so  save  himself  harmless.  Marsh  v.  Gold,  2  Pick.  285, 
290.  We  are  not  aware  that  this  case  has  ever  been  doubted,  and  in 
practice  bonds  of  indemnity  have  often  been  required.  In  the  case 
at  bar,  after  receiving  full  information,  he  chose  to  proceed,  and,  in 
defiance  of  the  treaty,  to  subject  the  subject  of  a  foreign  nation  to 
a  gross  indignity,  for  the  purpose  of  extorting  money  from  him,  under 
the  guise  of  a  precept,  which  the  court  had  no  jurisdiction  to  issue, 
and  which  it  would  not  have  issued,  had  the  facts  been  before  it. 
We  approve  of  the  language  of  Mr.  Freeman  in  Savacool  v.  Bough- 
ton,  21  Am.  Dec.  204,  where,  after  a  discussion  of  the  cases  bearing 
upon  the  question  of  the  liability  of  an  officer,  he  says:  "We  ap- 
prehend, at  all  events,  that  the  protection  of  process  cannot  so  far 
extend  as  to  protect  an  officer  who,  from  all  the  circumstances  of  the 
case,  does  not  appear  to  have  acted  in  good  faith,  and  whose  conduct 
shows  that  his  eyes  were  wilfully  closed  to  enable  him  not  to  see  and 
know  that  he  was  too  ready  an  instrument  in  the  perpetration  of  a 
grievous  wrong."  In  the  opinion  of  a  majority  of  the  court  the  in- 
struction requested  should  have  been  given.     Exceptions  sustained. 

KNOWLTON,  J.  (dissenting).  It  seems  to  me  that  the  opinion 
of  the  majority  of  the  court  is  wrong,  in  holding  that  the  defendant 
was  bound  to  receive  statements  made  by  the  plaintiff  or  others  for 

367 


CONSULAR  CASES 

the  purpose  of  determining  whether  he  could  lawfully  serve  a  writ 
which  was  regular  in  form,  and  which  on  its  face  showed  a  case 
within  the  jurisdiction  of  the  court.  The  exceptions  on  this  point 
present  a  naked  proposition  of  law,  and  raise  no  question  in  regard 
to  the  good  faith  of  the  defendant  in  performing  his  official  duty. 
The  writ  which  he  served  stated  an  ordinary  case  for  the  collection 
of  a  debt.  An  officer  is  bound  to  know  the  law,  even  to  the  extent 
of  determining  whether  a  statute  on  which  his  process  is  founded  is  or 
is  not  constitutional.  But  for  the  facts,  he  is  not  called  upon  to  take 
the  testimony  of  anybody  in  regard  to  anything  outside  of  the  state- 
ments contained  in  the  process,  nor  even  to  act  upon  what  he  believes 
to  be  his  own  knowledge.  The  jurisdiction  which  the  court  must  have 
in  order  to  justify  him  is  jurisdiction  of  the  case  stated  in  the  writ. 
It  may  turn  out  that  there  was  no  real  case  upon  which  to  issue  a 
writ,  and  that  the  prosecution  is  grossly  malicious,  or  that  there  is  a 
real  case  materially  different  from  that  stated,  and  which  does  not 
come  within  the  jurisdiction  of  the  court ;  but  the  officer  is  not  bound 
to  inquire  into  matters  of  this  kind.  This  has  been  held  in  a  great 
many  cases  in  ]\rassachusetts  and  elsewhere,  and  the  reasons  for  the 
rule  have  been  elaborately  stated  in  different  jurisdictions.  These 
reasons  seem  to  me  fully  to  cover  the  present  case.  Chase  v.  Ingalls, 
97  Mass.  524;  Cassier  v.  Fales,  139  Mass  461,  1  N.  E.  922;  Donohoe 
V.  Shed.  8  Mete.  (Mass.)  326;  Clarke  v.  May,  2  Gray,  410;  Wilmarth 
V.  Burt,  7  Mete.  (Mass.)  257;  Twitchell  v.  Shaw,  10  Cush.  46;  Under- 
wood V.  Robinson,  106  Mass.  296,  297 ;  Rawson  v.  Spencer,  113  Mass. 
40-46;  Fisher  v.  IMcGirr,  1  Gray,  1-45;  State  v.  Weed,  21  N.  H. 
262;  Batchelder  v.  Currier,  45  N.  H.  460;  Watson  v.  Watson,  9  Conn. 
140;  Warren  v.  Kelley,  80  Me.  513-531,  15  Atl.  49;  Earl  v.  Camp,  16 
Wend.  562;  Webber  v.  Gay,  24  Wend.  485;  People  v.  Warren,  5  Hill, 
440;  Hann  v.  Lloyd,  50  N.  J.  Law,  1,  11  Atl.  346;  Taylor  v.  Alexander, 
6  Ohio,  147;  Henline  v.  Reese,  (Ohio  Sup.)  44  N.  E.  269;  Wall  v. 
Trumbull.  16  Mich.  228,  234. 

The  ca.ses  in  Wisconsin  and  Illinois,  cited  in  the  opinion,  are 
the  only  ones  that  I  have  been  able  to  find,  after  considerable  investi- 
gation, which  hold  a  different  doctrine.  On  the  authorities  cited 
above,  I  am  unable  to  see  that  it  makes  any  difference  whether  the 
out.side  information  communicated  to  the  officer,  if  taken  to  be  true, 
would  show  the  real  case  to  be  one  upon  which  such  a  precept  cannot 
properly  be  issued,  because  it  comes  within  a  treaty  giving  exclusive 
jurisdiction  to  another  tribunal,  or  would  show  the  precept  to  be  un- 
warranted for  any  one  of  numerous  other  causes.  That  the  defendant 
in  the  original  action  happens  to  be  a  captain  of  a  Norwegian  ship, 
and  to  owe  the  plaintiff  in  his  official  capacity,  gives  him  a  privilege 

368 


CONSULAR  CASES 

of  which  he  may  or  may  not  avail  himself,  to  take  the  case  out  of  the 
general  jurisdiction  of  the  court.  I  think  this  fact  calls  for  the  appli- 
cation of  the  same  principle  as  a  strictly  personal  privilege.  Indeed,  the 
principle  of  the  cases  seems  to  cover  every  kind  of  external  fact  which 
operates  to  take  away  a  jurisdiction  that  appears  to  be  perfect  on 
the  face  of  the  papers.  It  has  been  held  that  an  officer  may,  if  he 
chooses,  act  upon  his  knowledge  or  information  of  actual  facts  which 
show  that  the  court  was  without  jurisdiction,  and  refuse  to  serve  the 
writ.  Earl  v.  Camp,  16,  Wend.  562;  Henline  v.  Reese  (Ohio  Sup.) 
44  N.  E.  269.  But  this  is  very  different  from  requiring  him,  at  his 
peril,  to  determine  questions  of  fact.  I  think  the  exceptions  should  be 
overruled. 

THODOROVICH  v.  FRANZJOSEF,  see  Von  Thodorovich  v.  Franzjosef 
Beneficial  Association. 

THOMPSON  V.  THE  NANNY,  (1805,  U.  S.) 
Bee.  217;  Fed.  Cases  13,984. 
Bee,  District  Court. 

[Court  refused  to  take  jurisdiction  in  case  between  alien  seamen 
and  discussed  right  of  jurisdiction  of  local  courts  in  such  cases. — Ed.] 

THOMPSON'S  SUCCESSION,  See  Lanfear  v.  Ritchie. 

TINGLE  V.  TUCKER,  (1849,  U.  S.) 
1  Abb.  Adm.  519;  Fed.  Cases  14,057. 
Betts,  District  Court. 

(523)  BETTS,  J.  The  sufficiency  of  the  action  taken  by  the 
United  States  consul  at  Marseilles  to  exonerate  the  respondent  from 
liability  for  the  improper  imprisonment  of  the  libellants  and  for 
their  discharge  from  the  ship,  is  the  main  point  to  be  considered  and 
disposed  of. 

The  proceedings  before  the  consul  were  had  at  the  instance  of 
the  respondent ;  and  if  any  deceit  or  malpractice  had  been  resorted  to 
by  him  to  induce  the  official  act  of  the  consul,  he  could  not  claim 
any  immunity  or  benefit  under  that  act.  There  is  nothing  in  the  case, 
however,  to  show  improper  conduct  or  blamable  motives  on  the  part 
of  the  master  in  referring  the  subject  to  the  consul,  or  that  he  did  not 
act  in  the  belief  that  the  libellants  had  commited  offences  against  the 
laws  of  the  United  States,  and  that  the  consul  had  rightful  authority 
to  examine  into  and  adjudicate  upon  the  charges,  and  take  order 
thereon  against  the  seamen. 

The  consul  certifies  and  returns  in  full  the  proofs  taken  by 

369 


CONSULAR  CASES 

him,  and  states  his  proceedings  to  have  been  had  by  virtue  of  section 
5  of  article  35  of  the  consular  instructions  relative  to  seamen  of  the 
United  States. 

(524)  The  instructions  referred  to  are  not  before  the  court, 
but  they  probably  have  relation  to  the  duties  of  consuls  under  the  acts 
of  1803  and  1840. 

Section  1  of  the  act  of  February  28,  1803,  (2  U.  S.  Stats.  203,) 
implies  the  power  of  a  consul  to  discharge  a  seaman  in  a  foreign  port, 
and  to  give  a  certificate  of  such  act  on  his  part ;  as  by  the  provisions  of 
the  section  such  certificate  of  the  consular  consent  to  the  discharge  re- 
lieves the  master  from  the  penalty  imposed  for  not  bringing  back  to 
the  United  States  such  seaman  with  the  ship. 

The  act  of  July  20,  1840,  in  terms  requires  the  concurrence  of  the 
seaman  and  master  in  an  application  to  the  consul  in  order  to  auth- 
orize him  to  discharge  the  seaman  in  a  foreign  port  under  the  pro- 
visions of  subdivisions  5  and  6  of  section  1  of  that  act.  5  U.  S.  Stats. 
395.  The  discharge  contemplated  by  those  sections  is,  however,  mani- 
festly one  from  the  obligation  of  the  shipping  contract,  and  has  no 
connection  with  the  authority  of  consuls  in  repressing  criminal 
offences  committed  by  seamen,  or  in  bringing  them  to  punishment 
therefor. 

Subdivision  11  of  section  1  of  the  same  act,  (act  of  July  20,  1840, 
5  U.  S.  Stats.  395,)  declares,  '*  it  shall  be  the  duty  of  consuls  and 
commercial  agents  to  reclaim  deserters,  and  discountenance  insub- 
ordination by  every  means  in  their  power,  and  when  the  local  auth- 
orities can  be  usefully  employed  for  that  purpose,  to  lend  their  aid, 
and  use  their  exertions  to  that  end  in  the  most  effectual  manner." 

It  is  known  to  be  the  familiar  practice,  in  French  ports  espec- 
ially, for  consuls,  upon  the  representations  of  masters  of  vessels,  and 
on  a  proper  substantiation  of  facts,  to  obtain  the  interposition  of  the 
local  police,  which  of  its  own  authority,  commits  seamen  to  prison  be- 
cause of  offences  on  board  of  their  vessels,  or  for  insubordination  of 
conduct.  Cases  of  this  nature  have  for  many  years  been  of  fre- 
quent occurrence. 

It  is  also  a  common  exercise  of  authority  by  American  (525) 
consuls  in  foreign  ports,  to  send  home  for  trial,  in  their  own  ships,  or 
by  a  different  conveyance,  seamen  accused  of  crimes  committed  at 
sea  or  in  foreign  ports.  I  am  not  aware  that  the  obligation  of  ship- 
ma.sters  to  bring  home  such  prisoners,  or  the  authority  of  consuls  to 
transmit  them,  has  ever  been  directly  questioned.  Some  of  our  most 
distinguished  admiralty  judges  have  expressed  strong  doubts  as  to 
the  power  of  consuls  in  tbese  respects;  and  also,  whether,  in  case 
seamen  are  imprisoned  abroad  or  sent  home  compulsorily  by  them, 

370 


CONSULAR  CASES 

such  acts  exonerate  the  master  from  liability  to  the  men  for  full 
wages  and  damages. 

Those  cases  will  be  more  particularly  adverted  to  in  another 
view  of  this  subject.  The  question  now  raised  in  this  cause,  it  is  to  be 
remarked,  was  not  directly  presented  in  those  for  decision ;  and  the 
suggestions  of  the  courts,  as  to  the  authority  of  those  acts,  were  ac- 
cordingly incidental,  and  in  illustration  of  the  general  doctrines  of 
the  law. 

The  inquiry  in  the  present  case  is,  whether  the  consul,  upon  the 
facts  asserted  by  him,  could  lawfully  discharge  the  libellants  from  the 
ship,  and  authorize  the  master  to  make  up  his  crew  by  employing 
others  in  their  place. 

The  testimony  taken  before  the  consul  proves  that  the  conduct 
and  threats  of  the  libellants  on  board  of  the  vessel  were  highly  mutin- 
ous, and  that  the  officers  had  reasonable  grounds  for  fear  for  their 
lives,  and  had  no  power  to  control  or  restrain  the  men,  at  sea. 

The  testimony  of  the  captain  and  his  wife,  taken  by  the  consul, 
could  not  be  admitted  on  the  trial  of  the  respondent  in  court,  the 
suit  being  personally  against  him  for  wages.     The  testimony,  also, 
given  by  Cooper  and  Lewis,  two  of  the  crew,  before  the  consul,  was 
retracted,  or  changed  in  essential  features  on  their  examination  in 
this  court.     Two  other  persons  on  board,  who  were  not  witnesses  be- 
fore the  consul,  were  examined  in  court,  as  were  also  the  libellants 
each  for  the  others.     These  proofs  rendered  the  balance  of  evidence 
(526)  plainly  in  favor  of  the  libellants  against  the  charge  that  their 
acts  had  been  dangerous  to  the  safety  of  the  vessel  or  her  officers. 
This  result  of  the  trial  here,  does  not,  however,  authorize  the  con- 
clusion that  the  case  before  the  consul  did  not  warrant  his  proceedings, 
nor  but  that  the  hearing  in  this  court,  had  it  been  on  an  indictment 
before  a  jury,  where  the  testimony  of  the  master  of  the  vessel  and  his 
wife  would  have  been  competent,  might  have  led  to  the  conviction 
of  the  seamen  of  the  mutinous  conduct  charged  against  them.     The 
point,  then,  is  whether  the  consular  act,  upon  the  proofs  before  him, 
in  detaching  these  men  from  the  ship,  and  ordering  them  home,  to  be 
there  dealt  with  imder  the  laws  of  the  United  States,  on  charges  for 
criminal  offences  committed  at  sea,  fails  to  bar  their  right  to  demand 
wages  to  the  end  of  the  voyage,  because  the  evidence  before  the  courts 
on  full  hearing  disproves  the  necessity  or  propriety  of  the  consular 
order.     It  is  to  be  observed  that  the  decision  of  the  consul  is  not 
given  merely  at  the  instance  and  on  the  representation  of  the  master 
and  respondent.     He  examined  into  the  charges  officially,  and  de- 
cided the  course  he  would  adopt  upon  full  hearing  of  proofs. 

Judges  Hopkinson  and  Ware  strongly  intimate  that  the  act  of 

371 


CONSULAR  CASES 

a  consul  in  confining  or  discharging  a  seaman  for  criminal  misconduct 
abroad,  affords  no  protection  to  the  master  on  a  demand  by  the  sea- 
man for  wages  and  expenses  and  damages  accruing  by  his  discharge 
or  imprisonment.  The  Mary,  Gilp.  31 ;  The  William  Harris,  Ware, 
367. 

The  force  of  these  suggestions  may,  perhaps,  be  regarded  as 
modified  by  the  views  expressed  by  Judge  Ware  in  the  more  recent 
case  of  Smith  v.  Trent,  (4  N.  Y.  Leg.  Obs.  13.)  This  was  a  suit 
brought  by  the  libellant,  a  seaman  on  board  of  the  Nimrod,  against 
the  master  of  the  vessel,  for  the  recovery  of  wages.  It  seems  that,  by 
reason  of  the  criminal  conduct  of  the  libellant  at  sea,  he  was  arrested, 
upon  the  arrival  of  the  vessel  at  Point  Peter,  in  the  West  Indies,  and 
confined  in  (527)  prison,  no  other  civil  authority  being  invoked  than 
that  of  the  American  consul  at  that  place.  He  was  subsequently, 
by  order  of  the  consul,  sent  home  in  irons  to  answer  to  the  charges 
brought  against  him  abroad  for  such  offences. 

In  relation  to  that  case,  the  judge  says:  "As  it  was,  it  was 
certainly  the  duty  of  the  master  to  call  upon  the  civil  authority 
of  the  place,  and  put  the  affair  in  a  train  of  judicial  examination. 
The  result  of  that  inquiry  was,  that  Smith  was  sent  home  as  a 
prisoner  to  answer  for  his  conduct  to  the  laws  of  his  country.  And 
from  the  facts  developed  on  the  trial  here,  it  appears  to  me,  that  the 
civil  authorities  were  perfectly  justified  in  this  course."  4  N.  Y. 
Leg.  Obs.  15,  16. 

Although  it  is  not  conceded  in  this  decision,  that  the  consul's 
discharge  of  the  seaman  abroad,  and  issuing  a  certificate  of  such  dis- 
charge, because  of  his  criminal  conduct,  would  bar  to  the  man  the 
recovery  of  his  wages  here,  yet  wages  were  in  fact  denied  him,  be- 
cause, by  his  own  misconduct,  he  had  disqualified  himself  from  per- 
forming the  services  for  which  wages  were  to  be  paid. 

My  mind  is  better  satisfied  with  the  more  direct  and  practical 
principle  applicable  to  the  facts.  The  rightful  authority  and  duty 
of  the  consul  to  interfere  and  take  a  seaman  from  his  ship,  when  his 
continuance  there  is  dangerous  to  officers  or  men,  being  recognized, 
fWaro,  16;  The  Nimrod,  4  N.  Y.  Leg.  Obs.  13,)  I  think  it  results  that 
such  practical  discharge  terminates  the  connection  of  the  seaman 
with  the  ship,  and  disqualifies  him  from  suing  the  master  or  ship  for 
after  wages  of  the  voyage,  and  it  is  quite  immaterial  whether  the 
judgment  of  discharge  rendered  by  the  consul  in  this  instance,  con- 
stitutes a  bar  to  the  action,  if  his  act  legally  separated  them  from 
the  ship  and  her  service. 

This  of  course  presupposes  that  there  has  been  no  improper  col- 
lusion or  deceit  on  the  part  of  the  master  or  owners,  and  that  the 

372 


CONSULAR  CASES 

consul  has  proceeded  with  integrity  and  on  probable  cause  in  his 
doings.  The  consul  is  personally  liable  to  the  (528)  party  injured, 
if  guilty  of  any  abuse  of  power,  for  all  damages  occasioned  thereby. 
Act  of  1840,  art.  18;  5  U.  S.  Stats.  397.  I  apprehend,  however,  that 
the  sounder  and  safer  doctrine  is,  that  when  on  clear  prima  facie 
proofs  he  orders  a  seaman  to  be  discharged  from  a  vessel  for  criminal 
conduct  threatening  the  safety  of  the  vessel,  or  of  her  officers  or  com- 
pany, and  transmits  him  home  for  trial  on  the  accusations,  such 
discharge  is  a  bar  to  any  continuing  claim  for  wages,  that  might  be 
enforced  if  his  connection  with  the  vessel  still  rightfully  subsisted. 

The  propriety  of  the  consul's  interference  is  to  be  determined 
upon  the  facts  before  him  at  the  time,  and  not  by  the  case  which  may 
be  shown  afterwards  on  trial.  As  in  the  present  instance,  displacing 
part  of  the  testimony  legitimately  admitted  by  the  consul,  and  in- 
troducing other  not  heard  by  him,  may  give  the  case  a  new  aspect, 
and  show  that  the  seaman,  though  debarred  of  wages  eo  'omine  by 
the  act  of  the  consul,  may  yet  resort  to  the  master  for  d  a  is  be- 
cause of  their  improper  severance  from  the  ship. 

Although  the  evidence  before  me  is  irreconcilably  com'  ting  on 
many  points,  I  consider  the  preponderance  of  it  to  suppon  the  de- 
mand of  the  libellants  for  wages  up  to  the  time  of  their  discharge,  and 
that  no  forfeiture  or  bar  of  those  wages  is  established  by  the  respon- 
dent. 

The  expenses  incurred  by  them  in  Marseilles,  by  imprisonment  or 
otherwise,  were  not  caused  by  the  master.  His  application  to  the 
consul  was  that  the  men  should  be  discharged  or  taken  from  the  ves- 
sel. That  w^as  granted.  Then  the  consul,  following  his  own  judg- 
ment of  his  duty  in  furtherance  of  public  justice,  had  the  men 
committed  to  prison,  and  afterwards  sent  home,  as  prisoners  for  trial. 

The  testimony  does  not  fix  upon  the  defendant  any  responsibility 
for  these  acts,  which  can  be  enforced  in  this  form  of  action. 

The  decree  will  be,  that  the  libellants,  in  these  respective  (529) 
causes,  recover  their  several  wages  up  to  the  time  of  their  discharge 
at  Marseilles,  with  costs  to  be  taxed ;  and  that  the  demand  for  wages 
to  the  termination  of  the  home  voyage  be  denied. 

Order  accordingly. 

TOIER  V.  WHITE,  (1834,  U.  S.) 

1  Ware  277;  Fed.  Cases  14,079. 
Ware,  District  Court. 

[Case  of  suit  of  consul  against  master  for  not  depositing  ship's 
papers.     Reasons  for  requiring  this  deposit. — Ed.] 

373 


CONSULAR  CASES 
TOPSY,  THE.  (1890,  U.  S.— Great  Britain) 

a  red.  Kep.  631. 
Simonton,  District  Court. 

[Case  in  which  the  district  court  took  jurisdiction  in  spite  of 
consul's  protest. — Ed.] 

TOWNSHEND  v.  THE  MINA,  (1868,  U.  S.) 

6  Phila.  482;  Fed.  Cases  14,121. 
Cadwaladcr,  District  Court. 

A  seaman  of  a  British  vessel,  having  submitted  his  claim  to  the  consul,  dis- 
regarded the  award  and  filed  his  libel.    The  court  declined  to  exercise  jurisdiction. 

This  was  a  libel  for  wages  by  the  first  mate  of  the  brig  Mina. 
Owing  to  alleged  disobedience  of  orders,  whereby  part  of  the  vessel's 
tackle  was  lost,  the  captain  claimed  to  defalk  from  the  wages  due  to 
the  mate  the  cost  of  a  hawser,  etc.  The  mate  referred  the  question 
involved,  with  the  concurrence  of  the  captain,  to  the  decision  of  the 
British  consul  at  the  port  of  Philadelphia,  The  consul  investigated 
and  decided  the  dispute.  The  mate  then  disregarded  the  award  by 
the  consul,  and  filed  this  libel  just  before  the  brig  left  port.  Security 
was  entered  through  the  consul's  intervention;  the  (483)  vessel  sailed; 
a  proctor  was  retained  to  defend  the  cause,  and  testimony  was  taken 
on  both  sides.  Whereupon,  the  case  having  been  heard  upon  the  alle- 
gations and  proofs  and  arguments  of  the  respective  advocates,  the 
following  remarks  were  made  by 

CADWALADER,  J.  This  was  a  British  vessel.  The  libellant 
shipped  imder  articles  conformable  to  the  present  law  of  England; 
but  as  the  voyage  was  ended  on  her  arrival  at  this  port,  he  had  an 
option  to  invoke  the  jurisdiction  of  this  court,  or  to  ask  and  submit 
to  the  interposition  of  the  British  consul.  He  adopted  the  latter 
course;  and  had  the  application  been  rejected  by  the  consul,  or 
improperly  acted  upon  by  him,  or  had  the  master  or  owners  of  the 
vessel  not  responded  to  the  libellant 's  request  of  consular  interposition, 
I  might  still,  with  caution,  have  entertained  the  jurisdiction.  The 
case,  however,  went  on,  in  a  friendly  way,  to  a  decision  of  the  whole 
subject  in  controversy  by  the  British  consul.  Had  this  decision  been 
so  extravagant  as  to  shock  the  intelligence  of  a  judicial  tribunal  in  a 
civilized  country,  I  might  have  disregarded  the  award  or  decision. 
I  say  "award  or  decision,"  without  using  the  words  in  a  strictly 
technical  sense.  The  result  of  this  case  was  the  decision  of  a  ques- 
tion of  considerable  doubt,  in  part,  against  the  libellant. 

The  consul  appears  to  have  taken  great  pains;  and  I  have  his 
written  statement  of  the  account  of  the  libellant,  particularly  set 

374 


CONSULAR  CASES 

forth,  as  he  adjudicated  and  settled  it.  He  decided  that  there  was 
due  to  him,  in  the  currency  of  this  place,  one  hundred  and  three 
dollars  and  seventy-six  cents,  ($103.76)  and  the  money  remains  in 
the  consulate  for  him. 

It  is  not  for  me  to  decide  whether  I  should  have  arrived  at  pre- 
cisely the  same  conclusion  as  the  consul  did.  I  am  quite  sure  that  he 
had  greater  facilities  for  arriving  at  a  correct  knowledge  of  the  facts 
than  I  can  have.  To  disregard  his  decision,  would  be  to  establish 
a  precedent  which  might  be  very  dangerous.  It  might  tempt  to 
much  needless  and  improper  litigation,  and  lead  to  double  dealing  on 
the  part  of  those  who,  having  submitted  the  decision  of  similar  dif- 
ficulties to  the  judgment  of  a  consul,  might  afterwards,  without  rea- 
son, and  for  improper  motives,  claim  the  jurisdiction  of  this  court. 

If  the  sum  of  one  hundred  and  three  dollars  and  seventy-six 
cents  ($103.76)  is  sent  within  three  days  to  the  proctor  for  libellant, 
or,  in  the  event  of  his  refusing  to  accept  it,  is  paid  into  court,  the 
libel  will  be  dismissed  at  the  cost  of  the  libellant. 

This  would  not  be  the  form  of  adjudication  in  a  court  of  common 
law,  where  judgment  would  be  given  at  once  for  this  amount.  But  I 
think  the  judgment  of  dismissal,  after  payment,  more  conformable 
to  the  proper  method  of  procedure,  in  a  court  of  admiralty,  where  it 
is  unwilling  to  exercise  jurisdiction. 

I  think  it  my  duty  to  add  that  the  conduct  of  the  consul,  in  this 
case,  deserves  great  commendation,  and  is  in  striking  contrast  with 
the  former  course  of  some  other  consuls  in  other  parts  of  the  world, 
who,  with  captious  opposition  to  courts  of  maritime  jurisdiction,  have 
sometimes  raised  diplomatic  questions  as  to  matters  of  slight  (484) 
importance,  and  not  in  themselves  very  intricate.  Such  captiousness 
may  often  occasion  unjustifiable  embarrassments,  besides  much  ex- 
pense and  inconvenience.  In  this  case,  the  consul  in  no  respect  inter- 
fered with  the  libellant 's  invocation  of  the  subsequent  interposition 
of  this  court,  but  merely  suggested  the  improbability  that  the  court 
would  entertain  the  jurisdiction.  The  consul  appears,  very  properly, 
to  have  employed  Mr.  Mitcheson  as  proctor  and  advocate  in  the 
cause,  but,  in  form,  as  proctor  and  advocate  for  the  respondent,  and 
not  of  the  consulate. 

TRiaUET  et  al.  v.  BATH,  (1761,  Great  Britain) 

3  Burr.   1478. 

Lord  Mansfield,  In  the  Court  of  King's  Bench. 

(1480)  (Extract)  I  remember  in  a  case  before  Lord  Talbot, 
of  Buvot  V.  Barbut,  upon  a  motion  to  discharge  the  defendant,  (who 
was  in  (1481)  execution  for  not  performing  a  decree,)  "Because  he 

375 


CONSULAR  CASES 

■was  the  agent  of  commerce,  commissioned  by  the  king  of  Prussia, 
and  received  here  as  such;"  the  matter  was  very  elaborately  argued 
at  the  bar;  and  a  solemn  deliberate  opinion  given  by  the  court.  These 
questions  arose  and  were  discussed. — "Whether  a  minister  could,  by 
any  act  or  acts,  waive  his  privilege." — "Whether  being  a  trader  was 
any  objection  against  allowing  privilege  to  a  minister,  personally." — 
' '  Whether  an  agent  of  commerce,  or  even  a  consul,  was  entitled  to  the 
privileges  of  a  public  minister." — "AMiat  was  the  rule  of  decision :  the 
act  of  parliament;  or,  the  law  of  nations."  Lord  Talbot  declared  a 
clear  opinion — "That  the  law  of  nations,  in  its  full  extent,  was  part 
of  the  law  of  England." — "That  the  act  of  parliament  was  declara- 
tory ;  and  occasioned  by  a  particular  incident. ' ' — ' '  That  the  law  of 
nations  was  to  be  collected  from  the  practice  of  different  nations,  and 
the  authority  of  writers."  Accordingly,  he  argued  and  determined 
from  such  instances,  and  the  authority  of  Grotius,  Barbeyrac,  Binker- 
shoek,  AViquefort,  etc. ;  there  being  no  English  writer  of  eminence, 
upon  the  subject. 

I  was  counsel  in  this  case ;  and  have  a  full  note  of  it. 

TROOP,  THE,  (1902,  U.  S.— Great  Britain) 
117  Fed.  Kep.  557. 
Uanford,  District  Court. 

[This  case   concerns  jurisdiction   of  U.   S.   courts  over   foreign 
ships  and  seamen  similar  to  that  of  the  Patterson  v.  Bark  Eudora. 
Affirmed  in  Kenney  v.  Blake,  125  Fed.  Rep.  672.— Ed.] 

TWO  miENLS,  (1799,  Great  Britain) 

1  Rob.  C.  217,  271. 

Sir  William  Scott,  High  Court  of  Admiralty. 

[This  case  seems  to  lead  to  the  conclusion  that  a  sailor  is  con- 
sidered to  be  of  the  nationality  of  the  ship  only  so  far  as  his  duties 
as  a  member  of  the  crew  are  concerned,  hence  the  jurisdiction  of  a 
consul  over  the  crew  would  not  exclude  the  jurisdiction  of  the  local 
courts  in  a  case  foreign  to  that  service  and  of  such  a  nature  as  not  to 
materially  inconvenience  the  shipping  interests  of  the  consul's  coun- 
try. 

p.  284  cites  case  of  the  Oester  Ems  where  chests  of  silver  from 
wreck  were  deposited  with  the  Prussian  consul. — Ed.] 

UNITED  STATES  v.  BADEAU,  (1887,  U.  S.) 
.31,  ¥<-A.  Kep.  r/J7. 

Wallace,  Circuit  Court. 

At  Law. 

(698)     WALLACE,  J.     This  suit  was  brought  in  the  district 

376 


CONSULAR  CASES 

court  to  recover  sums  of  money,  amounting  in  the  aggregate  to  $10,- 
572.64,  received  by  the  defendant  to  the  use  of  the  plaintiff  between 
July  1,  1870,  and  September  16,  1881,  as  consul  general  of  the  United 
States  at  London,  England.  In  the  final  account  rendered  by  the 
defendant  to  the  government  in  December,  1882,  he  credited  the  gov- 
ernment, and  charged  himself,  with  certain  moneys  in  his  hands,  less 
the  sum  in  controversy ;  which  sum  he  claimed  he  was  entitled  to  with- 
hold out  of  the  moneys  in  his  hands,  because  it  represented  the  amount 
of  fees  he  had  theretofore  erroneously  charged  against  himself  in 
former  accounts  rendered  to  the  government.  The  issue  upon  the 
trial  was  whether  the  defendant  was  entitled  to  retain  these  fees, 
amounting  in  the  aggregate  to  $10,572.64,  as  non-official  fees,  or 
whether  they  belonged  to  the  government  as  official  fees.  The  case  for 
the  government  was  rested  upon  the  production  in  evidence  of  a 
treasury  transcript  of  the  account  of  the  defendant.  The  nature  of 
the  items  charged  to  the  defendant  in  this  account,  comprising  the  sum 
in  controversy,  appears  in  the  treasury  transcript,  so  that  upon 
the  fact  of  the  account  it  was  shown  that  the  defendant  had  charged 
himself  with  fees  received  for  specified  acts  or  services,  amounting 
in  the  aggregate  to  $10,572.64;  and  the  only  question  upon  the  face 
of  the  account  was  whether  these  acts  or  services  were  official  or  non- 
official  in  their  character.  The  case  for  the  defendant  was  rested  upon 
his  own  testimony  that  the  items  with  which  he  had  originally  charged 
himself,  comprising  the  sum  in  controversy,  were  moneys  received  as 
fees  for  the  acts  and  services  described  and  detailed  in  the  account, 
and  upon  further  testimony  tending  to  show  the  interpretation  and 
construction  of  the  department  of  state  in  respect  to  the  regulations 
prescribing  the  duties  of  consular  officers. 

At  the  close  of  the  evidence  each  party  requested  peremptory 
instructions  to  the  jury, — the  plaintiff,  to  render  a  verdict  in  its  favor ; 
and  the  defendant,  to  render  a  verdict  in  his  favor.  The  court  ruled 
that  the  defendant  erroneously  charged  himself  originally  with  the 
items  which  comprise  the  sum  in  controversy,  because  they  consisted 
of  fees  received  by  him  for  non-official  acts.  The  counsel  for  the  plain- 
tiff then  asked  to  go  to  the  jury  upon  the  question  whether  the  fees 
were  received  by  the  defendant  for  non-official  acts,  but  the  court 
instructed  the  jury  to  find  a  verdict  for  the  defendant.  The  plaintiff 
has  brought  this  writ  of  error  to  review  these  rulings,  and  other  rul- 
ings made  during  the  progress  of  the  trial,  to  which  the  plaintiff  took 
exceptions. 

There  is  no  merit  in  the  exceptions  to  the  rulings  of  the  court 
in   admitting   evidence.       Even   if   the   testimony   received   should 


377 


CONSULAR  CASES 

be  decmpd  irrelevant,  as  the  case  was  not  submitted  to  the  jury,  the 
jury  were  not  misled. 

Neither  is  there  any  merit  in  the  exception  to  the  ruling  of  the 
court  refusing  to  submit  any  question  of  fact  to  the  jury.  There  was 
no  conflict  of  evidence  as  to  what  the  acts  were  for  which  the  fees  in 
controversy  were  received  by  the  defendant.  Whether  they  were  of- 
ficial or  non-official  was  a  question  of  law.  The  fees  were  received 
by  taking  (699)  affidavits,  acknowledgments,  and  authentications  for 
individuals  in  transactions  which  had  no  relation,  directly  or  remotely, 
with  the  official  business  of  the  government.  As  the  law  was  ruled 
by  the  court,  if  the  jury  had  found  against  the  defendant  as  to  any 
part  of  the  sum  in  controversy,  it  would  have  been  the  duty  of  the 
court  to  set  aside  the  verdict  as  against  the  weight  of  evidence.  The 
judge,  therefore,  properly  declined  to  submit  any  question  of  fact 
to  the  jury. 

There  was  no  error  in  the  refusal  of  the  court  to  permit  the 
amendment  of  the  complaint  sought  by  the  plaintiff.  The  motion 
was  addressed  to  the  discretion  of  the  court.  The  refusal  was  also  a 
just  exercise  of  discretion,  because  the  complaint  fully  set  out  the 
facts  constituting  the  cause  of  action ;  and  an  amendment  allowing  a 
cause  of  action  for  money  had  and  received  to  be  turned  into  one  upon 
an  account  stated  would  have  merely  tended  to  introduce  technical- 
ities, and  would  not  have  promoted  justice. 

The  real  question  in  the  case  is  whether  the  defendant  was  en- 
titled to  retain  the  items  with  which  he  originally  charged  himself, 
or  whether  these  items  were  for  fees  received  by  him  officially,  and  for 
which  he  was  bound  to  account  to  the  government.  The  district  judge, 
in  his  disposition  of  this  question  upon  the  trial,  assigned  reasons  for 
his  conclusion  that  the  items  represented  fees  for  non-official  acts 
which  are  entirely  satisfactory  to  this  court,  and  it  is  unnecessary  to 
recapitulate  or  enlarge  upon  them.  It  is  proper  to  say,  however,  that 
the  position  taken  by  the  defendant  that  the  fees  were  for  services 
not  required  by  consular  regulations,  but  were  for  services  of  a  non- 
official  character,  which  were  his  personal  emoluments,  and  for  which 
he  was  not  required  to  account  to  the  treasury  department,  is  fully 
RU.stained  and  justified  by  the  interpretation  and  construction  placed 
by  the  department  of  state  upon  the  meaning  of  its  own  regulations 
and  instructions  to  consular  officers.  The  president  was  authorized 
by  section  1745  of  the  revised  statutes  to  designate  what  services  of 
consular  officers  should  "be  regarded  as  official,"  besides  such  as  are 
expressly  declared  by  law.  The  services  for  which  the  fees  in  con- 
troversy were  charged,  if  they  were  official,  were  so  because  they  had 
been  designated  as  of  that  character  by  the  president.     The  president, 

378 


CONSULAR  CASES 

in  the  exercise  of  his  executive  power,  imder  the  constitution,  acts 
through  the  head  of  the  appropriate  executive  department.  The 
heads  of  departments  are  his  authorized  assistants  in  the  performance 
of  his  executive  duties,  and  their  official  acts,  promulgated  in  the  regu- 
lar course  of  business,  are  presumptively  his  acts.  Wilcox  v.  Jackson, 
13  Pet.  498,  513;  U.  S.  v.  Aliason,  16  Pet.  291,  302;  Confiscation  Cases, 
20  Wall.  102,  109 ;  U.  S.  v.  Farden,  99  U.  S.  10,  19 ;  Wolsey  v.  Chap- 
man, 101  U.  S.  755,  759. 

The  regulations  of  1870  and  1874  recognize  the  non-official  char- 
acter of  notarial  acts,  and  other  acts  which  a  consul  may  do,  "not  in 
his  quality  of  an  agent  of  the  federal  government,  but  simply  as  a 
citizen  of  the  United  States,  whose  local  position  and  character  render 
him  available  to  his  fellow  citizens  for  such  services  as  might  have 
been  rendered  by  private  individuals."  The  interpretation  placed 
upon  the  regulations  by  (700)  the  state  department  sufficiently  ap- 
pears in  the  evidence  upon  the  trial.  It  was  the  opinion  of  that  de- 
partment, communicated  to  consular  officers  during  the  time  the  de- 
fendant was  in  office,  and  uniformly  acted  upon  by  that  department, 
that  services  like  those  in  controversy  were  unofficial  services.  The 
action  of  the  accounting  officers  of  the  treasury  department,  in  dis- 
allowing to  the  defendant  the  items  with  which  he  had  erroneously 
charged  himself,  seems  to  have  proceeded  upon  the  assumption  that 
they  were  more  competent  to  determine  what  acts  performed  in  the 
state  department,  by  its  subordinate  officers  under  its  own  regulations, 
are  official,  and  what  are  non-official,  than  that  department  itself.  In 
a  difference  of  opinion  upon  any  such  question  it  is  hardly  necessary 
to  say  that  the  judgment  of  the  appropriate  executive  department 
will  generally  prevail. 

The  judgment  is  affirmed. 

UNITED  STATES  v.  BEE,  (1893,  U.  S.) 
54  Fed.  Rep.  112. 
Gilbert,  Circuit  Court. 

[Question  relating  to  time  at  which  consul's  salary  begins  and 
liability  of  consul's  bondsmen  for  excess  salary  paid  to  consul  by 
error. — Ed.] 

UNITED  STATES  v.  EATON,  (1898,  U.  S.) 

169  U.  S.  331;  18  Sup.  Ct.  Rep.  374. 
White,  Supreme  Court. 

Appeal  from  Court  of  Claims. 

In  October,  1890,  Sempronius  II.  Boyd  was  commissioned  as  min- 
ister resident  and  consul  general  of  the  United  States  to  Siam.     He 

379 


CONSULAR  CASES 

qualified  and  proceeded  to  his  post,  and  was  in  June,  1892,  engaged 
in  the  discharge  of  his  official  duties.  At  that  time,  being  seriously 
ill.  Boyd  was  granted  by  the  president  a  leave  of  absence.  Before 
leaving  Bangkok.  Siam,  Boyd,  to  quote  from  the  findings  of  fact, 
"believing  his  illness  would  terminate  fatally,  and  being  desirous  to 
protect  the  interests  of  the  government  during  his  absence,  and  until 
the  then  expected  arrival  from  the  United  States  of  Robert  M.  Boyd, 
whom  Sempronias  Boyd  desired  should  act  as  consul  general,  the 
latter  called  to  his  aid  Lewis  A.  Eaton  (now  a  plaintiff  herein,  who 
was  then  a  missionary  at  Bangkok),  and  asked  him  to  take  charge  of 
the  consulate  and  its  archives.  Thereupon  the  following  letter,  dated 
June  21,  1892,  was  written  by  Boyd : 

"  *U.  S.  Legation  and  Consulate  General. 
"  'Bangkok,  June  21,  1892. 

"  'Krom  Luang  Devawongsee  Varoprokan,  Minister  for  Foreign 
Affairs — ^Monsieur  le  Ministre:  It  is  with  exceeding  regret  to  me  to 
be  forced  to  abandon  my  diplomatic  and  consular  duties  at  the  court 
of  his  majesty,  with  the  enjoyment,  pleasure,  comfort,  and  genuine 
friendship  so  marked  and  distinguished,  which  the  representative  of 
the  United  States  fully  appreciated  and  imparted  to  his  government. 

' '  '  All  the  physicians  advise  me  to  go  soon  to  a  cold  climate.  The 
president  has  wired  me  to  that  effect.  In  20  or  30  days  I  may  be 
strong  enough  for  a  sea  voyage,  of  which  I  will  avail  myself.  I  am 
authorized  to  designate,  and  do  designate,  L.  A.  Eaton  vice  consul 
general  imtil  I  am  able  to  assume.  If  not  incompatible  with  public 
affairs,  I  beg  you  to  so  regard  him. 

"  'Monsieur  le  Ministre,  I  am  too  weak  and  feeble  to  call  in 
person,  which  I  would  so  much  like  to  have  done,  and  expressed  my 
thanks  and  that  of  my  government  to  the  foreign  office  and  attaches. 

"  'With  assurance  of  my  high  consideration,  I  have  the  honor 
to  be,  Monsieur  le  Ministre, 

"  'Your  obedient  servant.'  " 

Boyd  thereupon  administered  to  Eaton  an  oath  to  faithfully  dis- 
charge the  duties  of  the  office  of  vice  consul  general,  etc.  The  find- 
ings state  that  Boyd  believed  he  had  authority  for  this  action.  Robert 
M.  Boyd,  who  is  referred  to  above,  was  then  in  the  United  States,  and, 
although  appointed  as  vice  consul,  had  not  qualified.  Sempronius  H. 
Boyd  remained  in  Siam  until  the  12th  day  of  July,  1892,  when  he 
left  for  the  United  States;  and  on  his  departure  he  turned  over  to 
Eaton,  as  the  reprosontative  of  the  government  of  the  United  States, 
all  the  archives  and  property  of  the  legation.  Boyd  arrived  at  his 
home,  in  the  state  of  Missouri,  on  August  27,  1892;  and  although  his 
leave  of  absence  expired  October  26,  1892,  he  did  not,  on  account  of 

380 


CONSULAR  CASES 

illness,  return  to  his  post,  but  remained  at  his  home,  where  he  died 
June  22,  1894.  Eaton,  on  the  departure  of  Boyd,  was  the  sole 
person  ' '  in  charge  of  the  interests  of  the  government  at  Bangkok,  and 
performed  whatever  duties  were  required  there  of  either  a  minister 
resident  or  a  consul  general,  with  the  knowledge  of  the  department  of 
state  and  with  that  department's  approval.  The  department  acknow- 
ledged his  communications,  and  acted  upon  them  as  communications 
from  a  person  authorized  to  perform  the  duties  of  minister  resident 
and  consul  general  in  the  emergency  then  existing. "  On  "  September 
2,  1892,  Eaton  executed  (under  instructions  from  the  department  of 
state)  an  official  bond,  calling  himself  acting  consul  general  of  the 
United  States  at  Bangkok.  This  was  received  at  the  department  of 
state,  and  was  approved  January  3,  1893.  Subsequently,  under  in- 
structions from  the  department  of  state,  dated  January  24,  1893,  he 
executed  another  bond  as  vice  consul  general  of  the  United  States  at 
Bangkok,  which  was  approved  by  the  secretary  of  state  April  23,  1893. 
Both  of  these  bonds  bore  date  June  13,  1892,  with  the  knowledge  and 
consent  of  Eaton's  sureties  thereon,  and  were  so  dated  because  of  a 
pencil  memorandum  on  each  bond  when  received  in  blank  by  Eaton 
from  the  department  of  state,  directing  him  to  insert  the  date  of  his 
appointment  in  the  blank  space  reserved  for  the  date." 

On  November  2,  1892,  the  secretary  of  state  wrote  Eaton,  inclos- 
ing him  the  commission  of  Robert  Boyd,  which  had  been  issued  in 

1891,  as  vice  consul  at  Siam.  In  February,  1893,  Robert  Boyd  ap- 
peared in  Siam;  and,  in  accordance  with  the  instructions  of  the  sec- 
retary of  state,  Eaton  introduced  him  as  vice-consul,  and  on  May  18th 
he  qualified,  when  Eaton's  performance  of  the  duties  of  the  office 
ceased.     The  findings  below  say : 

'  *  Eaton  rendered  to  the  accounting  officers  of  the  treasury  his  ac- 
count for  salary  for  the  entire  period  of  his  service,in  which  he  charged 
and  claimed  one-half  of  the  salary  of  $5000  per  annum  appropriated 
for  said  post  of  minister  resident  and  consul  general,  from  July  12, 

1892,  to  October  26,  1892, — that  is,  from  the  departure  of  the  minis- 
ter to  and  including  the  date  on  which  the  leave  of  absence  for  sixty 
days  (excluding  transit  time)  expired, — and  the  full  salary^  at  the  rate 
of  $5000  per  annum,  from  October  27,  1892,  to  I\ray  17,  1893,  inclu- 
sive. 

"Eaton  also  rendered  with  his  salary  account  a  return  of  all 
fees  collected  during  the  entire  period  of  his  service,  both  fees  official 
and  unofficial,  imcluding  fees  notarial  and  fees  and  fines  received  in 
the  United  States  consular  court  at  Bangkok,  amounting  in  all  to 
$245.41. 

''Eaton  also  rendered  to  the  department  of  state  bis  account  of 

381 


CONSULAR  CASES 

disbursements  from  the  contingent  fund  of  the  legation  and  consulate 
general  from  July  1,  1892,  to  April  30,  1893,  which  was  there  ap- 
proved. 

"In  the  settlement  of  said  accounts  by  the  accoimting  officers  of 
the  treasury-,  the  sum  of  $5.73,  expended  by  Eaton  for  candles  and 
lanterns,  was  suspended  for  information,  which  was  thereafter  fur- 
nished, but  said  sum  remains  disallowed  and  impaid. 

"In  the  settlement  of  Eaton's  salary  accounts  by  the  treasury, 
the  total  amount  of  fees  received,  to  wit,  $245.41,  was  charged  to  him, 
and  covered  into  the  treasury.     The  one-half  salary  from  July  12, 

1892,  to  October  26,  1892,  amounting  to  $726.90,  was  suspended  for 
'further  information,'  which  was  thereafter  furnished,  but  this  sum 
remains  impaid.     The  full  salary  from  October  27,  1892,  to  May  17, 

1893,  amounting  to  $2,792.35,  as  approved  by  the  department  of 
state,  was  allowed  and  credited.  Deducting  from  this  $245.41  leaves 
in  Eaton's  favor  a  balance  of  $2,546.94,  which  was  certified  to  his 
credit  by  the  first  comptroller  December  4,  1893,  no  part  of  which  has 
been  paid." 

It  is  inferable  from  the  facts  found  that  the  amount  of  compensa- 
tion which  the  accounting  officers  of  the  government  settled  and  al- 
lowed in  favor  of  Eaton,  as  above  stated,  was  withheld  from  him, 
because  of  a  claim  advanced  by  Sempronius  H.  Boyd  to  the  entire 
salarj'  as  minister  resident  and  consul  general  during  a  part  of  the 
time  for  which  a  portion  of  or  the  whole  of  the  salary  had  been  al- 
lowed Eaton.  Indeed,  on  the  16th  of  June,  1894,  Sempronius  H. 
Boyd  sued  in  the  court  below  to  recover  his  full  salary  as  minister 
resident  and  consul  general  from  July,  1892,  to  February  11,  1893. 
Thereupon,  in  December,  1894,  Eaton  commenced  his  action  to  re- 
cover the  sums  embraced  in  the  following  items : 

(A)  For  notarial  or  imoflficial  fees  charged  to  him  in  the  settlement  of 

his  salary  account  by  report  No.  162,708,  as  aforesaid,  as  per 

exhibit    C    herewith    $177  41 

(B)  For  the  item  of  salary  suspended  in  the  settlement  of  his  accounts 

for  salary  by  report  No.  162,708,  as  aforesaid,   726  90 

(C)  For  the  balance  of  salary  found  due  to  claimant  by  report  No. 

162.708,  as  aforesaid,  and  certified  to  his  credit,   2,546  94 

(D)  For  item  expended  for  contingent  expenses  by  claimant,  and  sus- 

pended in  the  settlement  of  his  account  therefor  by  report  No. 

162.709,  as  aforesaid    5  73 


$3,456  98 


The  court  below  consolidated  the  two  cases,  and,  on  its  finding 
the  facts  above  recited,  rejected  the  claim  of  Sempronius  H,  3oyd, 

382 


CONSULAR  CASES 

his  widow  having  been  substituted  as  a  party  plaintiff  on  his  death, 
and  allowed  the  full  amount  of  the  claim  sued  for  by  Eaton.  From 
this  judgment  the  United  States  alone  appeals. 

Asst.  Atty.  Gen.  Pradt  and  Chas.  W.  Russell,  for  the  United 
States.     John  R.  Garrison  and  John  C.  Chaney,  for  appellee. 

Mr.  Justice  WHITE,  after  making  the  foregoing  statement  of  the 
case,  delivered  the  opinion  of  the  court. 

The  errors  relied  upon  to  obtain  a  reversal  rest  on  three  con- 
tentions: (1)  That  the  appointment  of  Eaton  as  acting  vice  consul 
was  without  warrant  of  law  and  hence  not  susceptible  of  ratification 
by  the  state  department.  (2)  Even  if  the  appointment  was  author- 
ized by  law,  the  statute  conferring  the  power  was  in  violation  of  the 
constitution  of  the  United  States.  (3)  Because,  even  conceding  the 
appointment  to  have  been  valid,  the  court  allowed  a  sum  in  excess  of 
the  amount  which  the  claimant  was  legally  entitled  to  recover.  We 
will  dispose  of  these  contentions  in  the  order  stated. 

In  the  third  paragraph  of  section  1674,  Rev.  St.,  the  following 
definition  is  found:  "Vice  consuls  and  vice  commercial  agents  shall 
be  deemed  to  denote  consular  officers,  who  shall  be  substituted,  tem- 
porarily, to  fill  the  places  of  consuls  general,  consuls  or  commercial 
agents,  when  they  shall  be  temporarily  absent  or  relieved  from  duty. ' ' 
And  this  definition  by  congress  of  the  nature  of  a  vice  consulship  was 
not  changed  by  the  amendment  to  section  4130  of  the  revised  statutes 
by  the  act  of  February  1,  1876,  as  the  obvious  purpose  of  that  act  was 
simply  to  provide  that,  where  the  words  "minister,"  "consul,"  or 
"consul  general"  were  generally  used  ,  they  should  be  taken  also 
as  embracing  the  subordinate  ofiicers  who  were  to  represent  the  prin- 
cipals in  case  of  absence;  in  other  words,  that,  where  a  delegation  of 
authority  was  made  to  the  incumbent  of  the  office,  the  fact  that  the 
name  of  the  principal  alone  was  mentioned  should  not  be  considered 
as  excluding  the  power  to  exercise  such  authority  by  the  subordinate 
and  temporary  ofiicer,  when  the  lawful  occasion  for  the  performance 
of  the  duty  by  him  arose.  Provision  for  the  appointment  and  the  pay 
of  vice  consuls  are  found  in  the  following  sections  of  the  revised 
statutes : 

"Sec.  1695.  The  president  is  authorized  to  define  the  extent  of 
country  to  be  embraced  within  any  consulate  or  conunercial  agency, 
and  to  provide  for  the  appointment  of  vice  consuls,  vice  commercial 
agents,  deputy  consuls  and  consular  agents,  therein,  in  such  manner 
and  under  such  regulations  as  he  shall  deem  proper;  but  no  compensa- 
tion shall  be  allowed  for  the  services  of  any  such  vice  consul,  or  vice 
commercial  agent,  beyond  nor  except  out  of  the  allowance  made  by 

383 


CONSULAR  CASES 

law  for  the  principal  consular  officer  in  whose  place  such  appointment 
shall  be  made.  No  vice  consul,  vice  commercial  agent,  deputy  con- 
sul, or  consular  agent,  shall  be  appointed  otherwise  than  under  such 
regulations  as  have  been  or  may  be  prescribed  by  the  president. ' ' 

"See.  1703.  Every  vice  consul  and  vice  commercial  agent  shall 
be  entitled,  as  compensation  for  his  services  as  such,  to  the  whole  or 
so  much  of  the  compensation  of  the  principal  consular  officer  in  whose 
place  he  shall  be  appointed,  as  shall  be  determined  by  the  president, 
and  the  residue,  if  any,  shall  be  paid  to  such  principal  consular  of- 
cer. 

The  consular  regulations,  promulgated  with  the  approval  of  the 
president,  contain  the  rules  adopted  in  execution  of  the  powers  ex- 
pressed in  the  above  provisions.  When  the  appointment  in  contro- 
versy took  place,  the  regulations  of  1888  were  in  force,  and  in  sections 
36,  87  and  471  thereof  were  found  the  rules  governing  the  appoint- 
ments of  vice  consuls  and  temporary  vice  consuls,  and  the  manner  of 
their  payment.     These  sections  are  as  follows : 

"36.  Vice  consuls  general,  deputy  consuls  general,  vice  con- 
suls ,  deput}'  consuls,  vice  commercial  agents,  deputy  commercial 
agents  and  consular  agents  are  appointed  by  the  secretary  of  state, 
usually  upon  the  nomination  of  the  principal  consular  officer,  ap- 
proved by  the  consul  general  (if  the  nomination  relates  to  a  consulate 
or  commercial  agency),  or  if  there  be  no  consul  general,  then  by  the 
diplomatic  representative.  If  there  be  no  consul  general  or  dip- 
lomatic representative,  the  nomination  should  be  transmitted  di- 
rectly to  the  department  of  state,  as  should  also  the  nomination  for 
subordinate  officers  in  Mexico,  British  India,  ^Manitoba  and  British 
Columbia.  The  nomination  for  vice  consul  general  and  deputy  consul 
general  must  be  submitted  to  the  diplomatic  representative  for  ap- 
proval, if  there  be  one  resident  in  the  country.  The  privilege  of  mak- 
ing the  nomination  for  the  foregoing  subordinate  officers  must  not  be 
construed  to  limit  the  authority  of  the  secretary  of  state,  as  provided 
by  law.  to  appoint  these  officers  without  such  previous  nomination  by 
the  principal  officer.  The  statutory  power  in  this  respect  is  reserved, 
and  it  will  bo  exercised  in  all  cases  in  which  the  interests  of  the  ser- 
vice or  other  public  reasons  may  be  deemed  to  require  it." 

"87.  In  case  a  vacancy  occurs  in  the  offices  both  of  consul  and 
vice  consul,  which  requires  the  appointment  of  a  per.son  to  perform 
temporarily  the  duties  of  the  consulate,  the  diplomatic  representative 
has  authority  to  make  such  appointment,  with  the  consent  of  the 
foreign  government  and  in  conformity  to  law  and  these  regulations, 
immediate  notice  being  given  to  the  department  of  state.  In  those 
countries,  however,   where  there  are  consuls  general,  to  whom,  the 

384 


CONSULAR  CASES 

nominations  of  subordinate  officers  are  required  to  be  submitted  for 
approval,  the  authority  to  make  such  temporary  appointments  is 
lodged  with  them.  Innnediate  notice  should  be  given  to  the  diplo- 
matic representative  of  the  proposed  appointment,  and,  if  it  can  be 
done  within  a  reasonable  time,  he  should  be  consulted  before  the  ap- 
pointment is  made.  If  such  a  vacancy  should  occur  in  a  consulate 
general,  the  temporary  appointment  will  be  made  by  the  diplomatic 
representative." 

"471.  The  compensation  of  a  vice  consul  general,  vice  consul, 
or  a  vice  commercial  agent  is  provided  for  only  from  that  of  the 
principal  officer.  The  rules  in  respect  to  his  compensation  are  as  fol- 
lows, viz : 

"  ( 1 )  In  case  the  principal  officer  is  absent  on  leave  for  sixty 
days  or  less,  in  any  one  calendar  year,  and  does  not  visit  the  United 
States,  the  vice  consular  officer  acting  in  his  place  is  entitled  to  one- 
half  of  the  compensation  of  the  office  from  the  date  of  assuming  its 
duties,  miless  there  is  an  agreement  for  a  different  rate,  the  principal 
officer  receiving  the  remainder.  But  after  the  expiration  of  the  sixty 
days,  or  after  the  expiration  of  the  principal's  leave  of  absence  (if 
less  than  sixty  days),  the  vice  consular  officer  is  entitled  to  the  full 
compensation  of  the  office. 

"(2)  If  the  principal  visits  the  United  States  on  such  leave 
and  returns  to  his  post,  the  foregoing  rule  will  include  the  time  of 
transit  both  from  and  to  his  post,  as  explained  in  paragraph  460.  But 
if  the  principal  does  not  return  to  his  post,  either  because  of  resigna- 
tion or  otherwise,  the  rule  will  embrace  only  the  time  of  absence,  not 
exceeding  sixty  days,  together  w'ith  the  time  of  transit  from  his  post 
to  his  residence  in  the  United  States." 

It  is  plain  that  the  above  sections  of  the  revised  statutes  confer 
upon  the  president  full  power,  in  his  discretion,  to  appoint  vice  con- 
suls and  fix  their  compensation ;  that  they  forbid  any  appointment, 
except  in  accordance  with  the  regulations  adopted  by  the  president, 
with  a  limitation,  however,  that  the  compensation  of  these  officers,  if 
appointed,  should  be  solely  "out  of  the  allowance  made  by  law  for 
the  principal  consular  officer  in  whose  place  such  appointment  shall  be 
made."  The  regulations  just  quoted  come  clearly  within  the  power 
thus  delegated.  The  legality  of  the  appointment  in  question  is  then 
first  to  be  determined  by  ascertaining  whether  it  was  authorized  by 
the  regulations.  Before  analyzing  the  text  of  the  regulations,  their 
general  purpose  must  be  borne  in  mind.  The  first  section  referred  to 
(36)  lodges  the  power  in  the  secretary  of  state  in  all  cases  to  appoint 
a  vice  consul  or  a  vice  consul  general.  The  manifest  object  of  the 
provision   was   to   prevent   the    continued   performance    of   consular 

385 


CONSULAR  CASES 

duties  from  being  interrupted  by  any  temporary  cause,  such  as  ab- 
sence, sickness,  or  even  during  an  interregnum  caused  by  death  and  be- 
fore an  incumbent  could  be  appointed.  This  was  secured  by  the  desig- 
nation in  advance  of  a  subordinate  and  temporary  official,  who,  in  the 
event  of  the  happening  of  the  foregoing  conditions,  would  be  present 
to  discharge  the  duties.  Section  87  provided  for  a  condition  of  af- 
fairs not  embraced  in  section  36 ;  that  is,  for  the  case  where  there 
would  arise  a  temporary  inability  to  perform  duty  on  the  part  of  both 
the  consul  and  vice  consul.  The  two  provisions  together  secure  an  un- 
broken performance  of  consular  duties  by  creating  the  necessary  ma- 
chinery to  have  within  reach  one  qualified  to  perform  them,  free 
from  any  vicissitude  which  might  befall  either  the  regular  incumbent 
of  the  office  of  consul  or  vice  appointee. 

In  view  of  the  recognition  of  Eaton  by  the  state  department,  and 
the  express  approval  of  his  bond  as  vice  consul,  it  would  result  that, 
at  least  from  the  date  of  the  official  action  of  the  secretary  of  state, 
he  would  be  entitled  to  be  treated  as  appointed  by  that  officer,  under 
section  36.  But,  as  the  sum  of  the  salary  allowed  by  the  court  below 
antedated  the  approval  of  the  bond,  we  pretermit  this  question,  and 
come  to  consider  whether  Eaton's  designation  was  within  the  regu- 
lation for  emergency  appointments  provided  in  section  87. 

The  first  requisite  for  calling  the  emergency  power  into  play 
exacted  by  this  regulation  was  that  there  should  be  a  vacancy  in  the 
office  both  of  consul  general  and  vice  consul.  It  is  clear  that  the 
findings  establish  that  there  was  such  ''vacancy,"  within  the  mean- 
ing of  the  regulation.  The  fact  that  the  minister  resident  and  con- 
sul general  had  obtained  a  leave  of  absence  from  the  president,  and 
was  sick  and  unable  to  discharge  his  duties,  and  that  the  vice  consul 
previously  appointed  had  not  qualified,  and  was  absent  from  Siam, 
did  not,  it  is  argued,  justify  an  emergency  appointment,  because  these 
facts  did  not  create  a  "vacancy,"  in  the  narrower  sense  of  that 
word.  But  the  vacancy  to  which  regulation  87  relates  cannot  be  con- 
strued in  a  technical  sense  without  doing  violence  to  both  the  letter 
and  spirit  of  the  statute  which  authorized  the  regulation,  and  with- 
out destroying  the  true  relation  and  harmonious  operation  of  the 
two  rules  on  the  subject  expressed  in  sections  36  and  87.  That  the 
statute  did  not  contemplate  a  merely  technical  vacancy  in  the  office 
of  a  consul  general,  before  a  vice  consul  could  be  appointed,  clearly 
results  from  the  fact  that  it  defines  the  latter  and  subordinate  officer 
as  one  "who  shall  be  substituted  temporarily  to  fill  the  places  of 
consuls  general  •  •  *  when  they  shall  be  temporarily  absent  or 
relieved  from  duty."  The  power  to  make  the  appointment  when  the 
consul  general  was  only  temporarily  absent  of  necessity  conveyed  au- 

386 


CONSULAR  CASES 

thority  to  do  so,  although  there  might  be  no  vacancy  in  the  office,  but 
simply  an  absence  of  the  principal  officer.  The  provision  of  the  statute 
limiting  the  pay  of  the  vice  consul  or  temporary  officer  out  of  the 
pay  of  the  principal  official,  the  incumbent,  is  also  susceptible  of  but 
one  construction ;  that  is,  that  the  temporary  officer  could  be  called 
upon  to  discharge  the  duties,  even  although  there  was  an  incumbent, 
where  from  absence  or  other  adequate  cause  he  ceased  temporarily  to 
perform  his  duties.  Regulation  36,  adopted  in  pursuance  of  the  sta- 
tute, and  providing  for  the  appointment  of  vice  consuls  simultaneous- 
ly or  concurrently  with  the  appointment  of  consuls,  and  regulating 
their  pay,  is  as  clear  on  this  subject  as  is  the  statute.  As  regulation 
87  but  adds  another  safeguard  to  that  created  by  the  general  terms 
of  36,  by  providing  for  a  contingency  not  contemplated  in  36, — that 
is,  the  case  of  vacancy  in  both  the  consular  and  vice  consular  offices, — 
it  follows  that  the  word  "vacancy,"  in  87,  imports  provision  for  a 
condition  like  unto  that  contemplated  by  the  law,  and  provided  for 
in  36.  Looking  at  the  two  regulations  together,  and  taking  in  view 
their  purpose,  it  is  obvious  that  the  appointment  of  the  temporary  of- 
ficer for  which  they  both  provide  depended  not  solely  on  a  technical 
vacancy,  but  included  a  case  where  there  arose  a  mere  absence  or  in- 
ability of  the  principal  and  vice  officer  to  discharge  the  duties  of  the 
consular  office. 

Nor  is  it  true  to  say  that  because  regulation  87  confers  the  power 
to  appoint  an  emergency  vice  consul  general  * '  on  the  diplomatic  repre- 
sentative," therefore  Boyd,  who  was  both  minister  resident  and  con- 
sul general,  was  without  authority  to  make  a  temporary  appointment 
to  the  latter  office.  The  argument  by  which  this  proposition  is  sup- 
ported is  as  follows:  As  Boyd  filled  both  offices,  if  there  was  inabil- 
ity to  discharge  the  duties  of  one,  there  was  also  like  inability  as  to 
the  other,  and  therefore  incapacity  to  designate  in  one  character  a 
temporary  officer  to  fill  the  duties  of  the  other.  The  error  here  lies  in 
assuming  that,  because  an  official  is  temporarily  prevented  from  per- 
forming the  duties  of  his  office,  thereby  he  becomes  without  capacity 
to  make  an  emergency  appointment.  There  is  no  essential  identity 
between  the  two  conditions,  and  it  was  because  of  their  evident  dis- 
tinction that  the  regulations  caused  the  existence  of  one  condition 
(the  temporary'  failure  to  perform  duty)  to  give  rise  to  the  other 
(that  is,  the  birth  of  the  power  to  make  the  temporary  appointment). 
It  would  lead  to  an  absurd  conclusion  to  construe  the  regulation  as 
meaning  that  the  very  circumstance  which  generated  the  power  to 
make  the  appointment  had  the  necessarj'-  effect  of  preventing  the 
coming  into  being  of  the  power  created.  If  the  two  offices  of  minister 
resident  and  consul  general  be  treated  as  distinct  and  separate  func- 

387 


CONSULAR  CASES 

tions,  although  vested  in  the  same  natural  person,  the  authority  was 
clearly  in  the  minister  to  appoint  the  vice  consul  general.  If,  on  the 
other  hand,  the  two  functions  be  considered  as  indivisible,  the  like  re- 
sult follows,  since  the  mere  fact  that  the  officer  had  obtained  a  leave, 
or  was  sick  and  imable  to  be  present  in  his  office  and  discharge  its 
duties,  did  not  deprive  him  of  the  capacity  to  make  a  temporary  ap- 
pointment. In  its  ultimate  analysis,  the  proposition  we  have  just  con- 
sidered substantially  maintains  that  in  no  case  where  the  duties  of 
the  minister  resident  and  consul  general  are  imited  in  the  one  person 
can  an  emergency  consul  general  be  designated  imder  section  87.  It 
would  follow  that  in  every  such  case  where  leave  of  absence  was 
granted  or  sickness  arose,  and  there  was  no  vice  consul  general  pres- 
ent, the  public  interest  must  inevitably  suffer  in  consequence  of  the 
closing  of  the  consular  office.  But  the  very  purpose  of  the  statute 
and  regulations  was  to  guard  against  such  a  contingency.  The  evil 
consequences  to  result  from  admitting  the  proposition  is  conceded,  but 
the  result  is  attributed,  not  to  error  in  the  argument,  but  to  a  pre- 
sumed omission  in  the  regulations,  which  should,  it  is  urged,  be  cor- 
rected, not  by  judicial  construction,  but  by  an  amendment  or  change 
in  the  regulations.  The  error  in  the  proposition,  however,  cannot  be 
obscured  by  assigning  the  consequences  which  flow  from  it  to  a  de- 
feet  in  the  regulations,  when,  if  a  sound  rule  of  interpretation  be 
applied,  the  supposed  omission  does  not  arise. 

The  construction  rendered  necessary  by  a  consideration  of  the 
text  of  the  statute  and  the  regulations,  by  the  remedy  intended  to  be 
afforded,  and  the  evil  which  it  was  their  purpose  to  frustrate,  is  that 
the  power  to  designate  in  case  of  the  absence  or  the  temporary  in- 
ability of  the  consul  general  was  lodged  in  a  superior  officer,  if  there 
was  such  officer  in  the  country  where  the  consul  discharged  his  duty, 
and,  if  not,  on  the  happening  of  the  conditions  contemplated  by  the 
rule,  the  officer  highest  in  rank  was  authorized  to  make  the  temporary 
appointment.  Doubtless,  it  was  this  construction  which  caused  the 
department  of  state  to  recognize  Eaton's  appointment,  and  the  sec- 
retary of  state  to  approve  his  bond  as  vice  consul  general.  The  inter- 
pretation given  to  the  regulations  by  the  department  charged  with 
their  execution,  and  by  the  official  who  has  the  power,  with  the  sanc- 
tion of  the  president,  to  amend  them,  is  entitled  to  the  greatest  weight, 
and  we  see  no  reason  in  this  case  to  doubt  its  correctness. 

The  claim  that  congress  was  without  power  to  vest  in  the  presi- 
dent the  appointment  of  a  subordinate  officer  called  a  "vice  consul," 
to  be  charged  with  the  duty  of  temporarily  performing  the  functions 
of  the  consular  office,  disregards  both  the  letter  and  spirit  of  the  con- 
stitution.   Although  section  2  of  article  2  of  the  constitution  requires 

388 


CONSULAR  CASES 

consuls  to  be  appointed  by  the  president  ' '  by  and  with  the  advice  and 
consent  of  the  senate,"  the  word  "consul"  therein  does  not  embrace 
a  subordinate  and  temporary  officer  like  that  of  vice  consul,  as  defined 
in  the  statute.  The  appointment  of  such  an  officer  is  within  the  grant 
of  power  expressed  in  the  same  section,  saying:  "But  the  congress 
may  by  law  vest  the  appointment  of  such  inferior  officers,  as  they 
think  proper,  in  the  president  alone,  in  the  courts  of  law  or  in  the 
heads  of  departments."  Because  the  subordinate  officer  is  charged 
with  the  performance  of  the  duty  of  the  superior  for  a  limited  time, 
and  under  special  and  temporary  conditions,  he  is  not  thereby  trans- 
formed into  the  superior  and  permanent  official.  To  so  hold  would 
render  void  any  and  every  delegation  of  power  to  an  inferior  to  per- 
form under  any  circumstances  or  exigency  the  duties  of  a  superior 
officer,  and  the  discharge  of  administrative  duties  would  be  seriously 
hindered.  The  manifest  purpose  of  congress  in  classifying  and  de- 
fining the  grades  of  consular  offices,  in  the  statute  to  which  we  have 
referred,  was  to  so  limit  the  period  of  duty  to  be  performed  by  the 
vice  consuls,  and  thereby  to  deprive  them  of  the  character  of  "con- 
suls," in  the  broader  and  more  permanent  sense  of  that  word.  A 
review  of  the  legislation  on  the  subject  makes  this  quite  clear.  Sec- 
tion 1674,  Rev.  St.,  took  its  source  in  "An  act  to  regulate  the  diplo- 
matic and  consular  systems  of  the  United  States,"  approved  August 
18,  1856.  11  Stat.  52.  While  in  the  earlier  periods  of  the  government, 
officers  known  as  ' '  vice-consuls ' '  were  appointed  by  the  president,  and 
confirmed  by  the  senate,  the  officials  thus  designated  were  not  subor- 
dinate and  temporary,  but  were  permanent  and  in  reality  principal 
officials.  7  Op.  Attys.  Gen.  247;  3  Jefferson's  Writings,  188.  During 
the  period,  however,  while  the  office  of  vice  consul  was  considered  as 
an  independent  and  separate  function,  requiring  confirmation  by  the 
senate,  where  a  vacancy  in  a  consular  office  arose  by  death  of  the  in- 
cumbent, and  the  duties  were  discharged  by  a  person  who  acted  tem- 
porarily, without  any  appointment  whatever,  it  would  seem  that  the 
practice  prevailed  of  paying  such  officials  as  de  facto  officers.  In  1832 
the  department  of  state  submitted  to  Mr.  Attorney  General  Taney  the 
question  of  whether  the  son  of  a  deceased  consul,  who  had  remained 
in  the  consular  office,  and  discharged  its  duties,  was  entitled  to  the  pay 
of  the  office.    In  replying,  the  attorney  general  said : 

"If,  after  the  death  of  Mr.  Coxe,  his  son  performed  the  services, 
and  incurred  the  expenses  of  a  residence  there,  and  his  acts  have 
been  recognized  by  the  government,  I  do  not  perceive  why  he  should 
not  receive  the  compensation  fixed  by  law  for  such  services.  He  was 
the  de  facto  consul  for  the  time,  and  the  public  received  the  benefit. 
*     *     *     The  practice  of  the  government  sanctions  this  opinion,  as 

389 


CONSULAR  CASES 

appears  by  the  papers  before  me;  and  in  several  instances  similar  to 
this,  since  the  law  of  1810,  the  salary  has  been  paid.  *  *  *  The 
public  interest  requires  that  the  duties  of  the  office  should  be  dis- 
charged by  some  one ;  and  where,  upon  the  death  of  the  consul,  a  per- 
son who  is  in  possession  of  the  papers  of  the  consulate  enters  on  the 
discharge  of  its  duties,  and  fulfills  them  to  the  satisfaction  of  the  gov- 
ernment, I  do  not  perceive  why  he  should  not  be  recognized  as  consul 
for  the  time  he  acted  as  such,  and  performed  the  services  to  the  pub- 
lic; and,  if  he  is  so  recognized,  the  law  of  congress  entitles  him  to 
his  salary."    2  Op.  Attys.  Gen.  523,  524. 

The  terms  of  the  law  and  its  construction,  in  practice  for  more 
than  40  years,  sustains  the  theory  that  a  vice  consul  is  a  mere  sub- 
ordinate official,  and  we  do  not  doubt  its  correctness. 

We  come,  then,  to  consider  the  errors  assigned  as  to  the  amount 
of  the  salary.  Prior  to  February  26,  1883,  the  consular  official  at 
Bangkok  was  of  the  third  class,  and  his  salary  w^as  $3,000.  At  the  date 
mentioned  (26  Stat.  324),  an  appropriation  was  made  for  minister, 
resident  and  consul  general,  to  Siam,  $5,000.  It  was  on  this  salary, 
which  was  reiterated  in  subsequent  appropriations,  that  the  allowance 
to  Eaton  was  computed  by  the  accounting  officer  of  the  treasury,  and 
adjudged  by  the  court  below.  It  is  first  claimed  that  as  the  vice  ap- 
pointment related  only  to  the  consul  general's  office,  and  not  to  that  of 
minister  resident,  there  was  error  in  computing  the  allowance  on  the 
basis  of  the  salary  of  both  offices.  Although  both  the  statute  and  the 
regulations  provide  for  the  payment  of  the  vice  official  from  that  of  the 
principal  officer,  and  of  this  fact  congress  presumably  had  knowledge, 
yet  in  no  case  for  the  appropriation  for  the  salary  of  the  minister 
resident  and  consul  general  to  Siam  has  there  been  an  attribution  of 
a  portion  thereof  to  one  function,  and  another  part  to  the  other.  On 
the  contrary,  congress  has  treated  the  compensation  of  the  two  as  an 
indivisible  unit.  As  the  duties  of  the  two  offices  have  thus  been  in- 
separably blended  by  congress,  and  presumably  the  performance  of 
the  function  of  one  office  embraced  of  necessity  the  discharge  of  the 
duties  of  the  other,  we  do  not  think  the  accounting  officers  erred  in 
treating  the  salary  fixed  for  the  joint  service  as  indivisible,  and  in  not 
attempting  an  apportionment,  when  congress  had  failed  to  direct  that 
such  division  be  made,  or  to  furnish  the  method  of  making  it.  Indeed, 
the  finding  that  I^aton  executed  all  the  duties  of  both  offices  required 
of  him  by  the  state  department,  during  his  temporary  tenure,  implies 
that  he  performed,  at  the  request  of  the  state  department,  as  consul 
general,  all  the  functions  of  minister  resident.  Thus,  the  facts  bring 
the  case  directly  within  Rev.  St.  §  1738,  which  provides  that  a  con- 
sular officer  may  exercise  diplomatic  functions,  in  the  country  to  which 

390 


CONSULAR  CASES 

he  is  appointed,  when  there  is  no  officer  of  the  United  States  empower- 
ed to  discharge  such  duties  therein,  and  when  the  consular  officer 
is  "expressly  authorized  by  the  president  to  do  so."  Conclusive  co- 
gency results  from  these  considerations  when  it  is  borne  in  mind  that 
by  the  treaty  between  Siam  and  the  United  States  there  was  but  one 
diplomatic  and  consular  officer  of  the  United  States  in  Siam,  and  that 
by  the  express  terms  of  one  of  the  later  treaties  with  Siam  the  words 
"consul  general  of  the  United  States,"  therein  used,  are  defined  to 
include  any  consular  officer  of  the  United  States  in  Siam.  23  Stat. 
782,  783. 

It  is  further  argued  that  as  the  vice  consul  is  required  by  law 
(Rev.  St.  §  1698),  before  he  enters  on  the  execution  of  his  trust,  to 
give  bond,  there  was  error  in  allowing  Eaton  compensation  for  a 
period  prior  to  the  approval  of  his  bond  by  the  secretary  of  state  on 
April  3,  1893.  The  finding  by  the  court  below  that  Eaton  entered 
on  the  discharge  of  his  duties  when  designated,  at  once  communicated 
with  the  department  of  state,  and  was  recognized  as  consul  general, 
and  allowed  to  perform  all  the  duties  of  that  office,  answers  this  con- 
tention. It  is  settled  that  statutory  provisions  of  the  character  of 
those  referred  to  are  directory,  and  not  mandatory.  In  U.  S.  v.  Brad- 
ley, 10  Pet.  343,  which  was  a  suit  upon  a  bond  given  by  one  Hall  as 
paymaster,  it  was  contended  that,  as  the  bond  required  by  the  statute 
to  be  executed  before  an  appointee  could  enter  upon  the  duties  of  the 
office  had  not  been  furnished,  Hall  was  not  accountable  as  paymaster 
for  moneys  received  by  him  from  the  government.  The  court,  how- 
ever, held  otherwise,  saying,  per  Story,  J.  (Page  364)  :  "The  giving 
of  the  bond  was  a  mere  ministerial  act  for  the  security  of  the  govern- 
ment, and  not  a  condition  precedent  to  his  authority  to  act  as  pay- 
master. Having  received  the  public  moneys  as  paymaster,  he  must 
accoimt  for  them  as  paymaster."  In  U.  S.  v.  Linn,  15  Pet.  313,  suit 
was  brought  upon  an  imdertaking  executed  by  Linn  as  receiver  of 
public  moneys,  with  sureties.  A  contention  was  advanced  like  that 
made  in  the  Bradley  case.  The  undertaking  in  question  was  not  ex- 
ecuted under  seal,  while  the  statute  required  that  the  appointee  should, 
before  entering  upon  the  duties  of  the  office,  execute  a  "bond."  In 
holding  the  undertaking  enforceable  as  a  common-law  obligation,  and 
answering  the  claim  that  it  was  not  valid  for  w-ant  of  a  consideration, 
the  court,  per  Thompson,  J.,  said  (page  313)  :  "The  emoluments  of 
the  office  were  the  considerations  allowed  him  for  the  execution  of  the 
duties  of  his  office ;  and  his  appointment  and  commission  entitled  him 
to  receive  this  compensation,  whether  he  gave  any  security  or  not. 
His  official  rights  and  duties  attached  upon  his  appointment."  And  in 
referring  approvingly  to  the  decision  in  the  Bradley  case,  and  in  re- 

391 


CONSULAR  CASES 

iterating  the  reasoning  of  the  opinion  in  that  case  to  which  we  have  al- 
ready alhuled,  the  court  said  (page  313)  :  "According  to  this  doc- 
trine, which  is  undoubtedly  sound,  Linn  was  a  receiver  de  jure  as  well 
as  de  facto  when  the  instrument  in  question  was  given.  And,  al- 
though tlie  law  requiring  security  was  directory  to  the  officers  in- 
trusted with  taking  such  security,  Linn  was  under  a  legal  as  well  as 
a  moral  obligation  to  give  the  security  required  by  law."  At  page 
31 4  it  was  also  observed  that  it  was  not  the  mere  appointment  of  Linn 
as  receiver  that  formed  the  consideration  of  the  instrument  sued  upon, 
but  the  emoluments  and  benefits  resulting  therefrom. 

It  is  true,  as  claimed  by  counsel  for  the  government,  that  in  the 
opinion  delivered  in  the  subsequent  case  of  U.  S.  v.  Le  Baron,  19 
How.  77,  expressions  are  found  which  appear  inconsistent  with  those 
to  which  we  have  just  called  attention.  But  the  question  presented 
in  the  Le  Baron  case  was  as  to  the  proper  construction  of  the  language 
of  a  bond  which  had  been  given  by  a  government  official,  subsequent 
to  his  permanent  appointment  as  a  deputy  postmaster,  which  bond 
was  executed  at  the  time  the  appointee  was  performing  the  duties  of 
the  office  under  a  temporary  appointment  made  during  a  recess  of  the 
senate.  Suit  having  been  brought  for  a  breach  of  the  condition  of  the 
bond,  it  was  contended  that  the  terms  of  the  instrument  stipulated 
only  for  liability  for  the  proper  performance  of  the  duties  of  the 
office  under  the  first  appointment.  It  was  held,  however,  that  as  the 
statute  required  the  giving  of  bond  before  the  appointee  could  enter 
upon  the  execution  of  the  duties  of  the  office,  it  could  not  be  pre- 
sumed that  the  bond  was  intended  to  relate  back  to  an  earlier  date 
than  the  time  of  its  acceptance,  and  that  its  terms  should  be  given  a 
prospective  and  not  a  retrospective  operation.  In  the  course  of  the 
reasoning  on  this  branch  of  the  case,  general  expressions  were  used  to 
the  effect  that  the  appointee  could  not  act  and  the  bond  could  not  take 
effect  until  its  approval;  and  in  discussing  the  further  contention 
that  the  appointee  was  not  in  office  under  the  second  appointment  at 
the  tinie  the  bond  took  effect,  because  his  commission  had  not  been 
sent  to  him,  and  was  not  actually  transmitted  until  after  the  death  of 
the  president  who  had  made  the  appointment,  it  was  observed  that  the 
acts  required  by  the  statute  to  be  performed  by  the  appointee  be- 
fore he  could  enter  on  the  possession  of  the  office  under  his  appoint- 
ment were  "conditions  precedent  to  the  complete  investiture  of  the 
office,"  and  that,  "when  the  person  has  performed  the  required  condi- 
tions, his  title  to  enter  on  the  possession  of  the  office  is  also  com- 
plete." But  this  general  language  must  be  confined  to  the  precise 
state  of  facts  with  reference  to  which  it  was  used,  and  does  not  war- 
rant the  inference  that  it  was  intended  to  overrule  the  doctrine  enun- 

392 


CONSULAR  CASES 

ciated  in  the  Bradley  and  Linn  cases,  which  were  not  even  referred  to. 
Indeed,  that  this  was  not  supposed  to  be  the  deduction  proper  to  be 
drawn  from  the  reasoning  in  the  Le  Baron  case  is  shown  by  the  fact 
that  in  the  later  case  of  U.  S.  v.  Flanders,  112  U.  S.  88,  5  Sup.  Ct.  67, 
the  doctrine  of  the  earlier  cases  was  carried  to  its  legitimate  result. 
In  the  Flanders  case  the  precise  question  raised  in  the  case  at  bar  was 
presented  and  decided.  A  collector  of  internal  revenue  who  was  re- 
quired, before  entering  upon  the  duties  of  his  office,  to  give  bond,  and 
who  was  also  required  to  take  an  oath  before  becoming  entitled  to  the 
salary  or  emoluments  of  the  oflfice,  failed  to  give  bond  or  take  the 
oath  until  more  than  two  months  after  he  had  been  allowed  to  enter 
upon  the  duties  of  the  office.  In  a  suit  upon  the  bond,  credit  was 
claimed  for  compensation  for  services  performed  during  the  period 
preceding  the  taking  of  the  oath  and  giving  of  bond,  and  the  allow- 
ance was  resisted  by  the  government  on  the  ground  that,  under  the 
statutory  provisions  referred  to,  the  right  to  compensation  did  not 
exist.  The  court,  however,  held  otherwise,  saying  (page  91,  112  U. 
S.,  and  page  68,  5  Sup.  Ct.)  : 

"If  the  collector  is  appointed,  and  acts  and  collects  the  moneys, 
and  pays  them  over  and  accounts  for  them,  and  the  government  ac- 
cepts his  services,  and  receives  the  moneys,  his  title  to  the  compensa- 
tion necessarily  accrues,  unless  there  is  a  restriction  growing  out  of 
the  fact  that  another  statute  says  that  he  must  take  the  oath  'before 
being  entitled  to  any  of  the  salary  or  other  emoluments '  of  the  office. 

"But  we  are  of  opinion  that  the  statute  is  satisfied  by  holding 
that  his  title  to  receive  or  retain  or  hold,  or  appropriate  the  com- 
mission as  compensation  does  not  arise  until  he  takes  and  subscribes 
the  oath  or  affirmation,  but  that,  when  he  does  so,  his  compensation 
is  to  be  computed  on  moneys  collected  by  him,  from  the  time  when, 
under  his  appointment,  he  began  to  perform  services  as  collector, 
which  the  government  accepted,  provided  he  has  paid  over  and  ac- 
counted for  such  moneys." 

This  was  evidently  the  view  taken  by  the  state  department,  since 
on  January  24,  1893,  when  the  bond  was  returned  for  re-execution 
in  another  form,  Eaton  was  directed  to  insert  therein  the  date  of  his 
original  appointment.  These  considerations  dispose  of  all  the  ques- 
tions presented,  except  the  contention  that  there  was  error  in  award- 
ing to  Eaton  certain  items  of  fees  collected,  and  reported  to  the  treas- 
ury, and  charged  to  him.  included  in  which  were  commissions  of  $67.91 
earned  on  the  settlement  of  two  estates,  and  the  sum  of  $5.73  disbursed 
by  Eaton  for  lights  upon  the  birthday  of  the  king  of  Siam.  We  need 
only  examine  the  legality  of  the  two  items  just  mentioned,  as  the  sole 
objection  made  to  the  validity  of  the  others  is  that  Eaton  was  not  en- 

393 


CONSULAR  CASES 

titled  to  cnarge  them,  because  he  was  not  lawfully  acting  as  consul 
general. 

It  is  contended  that  the  fees  collected  for  settlement  of  estates 
should  not  be  allowed,  because  the  services  were  "official,"  and  we 
are  referred  to  paragraph  508,  subd.  69,  of  the  consular  regulations 
of  1888,  as  supporting  this  claim.  On  the  part  of  the  appellee,  how- 
ever, it  is  urged  that  the  point  has  been  held  otherwise  in  U.  S. 
V.  Mosby.  133  U.  S.  273,  10  Sup.  Ct.  327,  where  it  is  said  a  similar  ob- 
jection to  like  charges  was  decided  to  be  without  merit. 

It  was  held  in  the  Mosby  case  that  the  court  of  claims  properly 
allowed  to  ]\Iosby  (who  had  been  consul  at  Hong  Kong  from  February, 
1879,  to  July,  1885)  the  sum  of  $8.21,  as  "five  per  cent,  commission 
on  the  estate  of  Alice  Evans,  May,  1881."  In  disposing  of  the  matter, 
the  court  said  (page  287,  133  U.  S.,  and  page  332,  10  Sup.  Ct.)  that 
"this  evidently  was  a  fee  in  the  settlement  of  a  private  estate,  and 
was  properly  allowed."  It  does  not  distinctly  appear  whether  the 
fee  there  considered  was  controlled  by  the  consular  regulations  of 
1874,  or  by  those  of  1881,  This  is  obvious  when  it  is  considered  that 
the  regulations  of  1881  were  only  promulgated  in  May  of  that  year. 
The  regulations  controlling  this  case  are  those  of  1888,  which  in  the 
respect  in  question  are  substantially  like  those  of  1881,  while  fees 
earned  prior  to  May,  1881,  were  governed  by  the  regulations  of  1874, 
which  differed  on  the  subject  from  those  of  1881.  Indeed,  this  differ- 
ence between  the  two  was  referred  to  in  the  IMosby  case,  where  it 
was  said  (page  280,  133  U.  S.,  and  page  330,  10  Sup.  Ct.)  : 

"Paragraph  321  of  the  regulations  of  1874  is  as  follows:  '321, 
All  acts  are  to  be  regarded  as  "official  services"  when  the  consul  is 
required  to  use  his  seal  and  title  officially,  or  either  of  them;  and  the 
fees  received  therefore  are  to  be  accounted  for  to  the  treasury  of 
the  United  States.'  It  is  to  be  observed  that  this  paragraph  used  the 
word  'required,'  and  does  not  say  that  all  acts  are  to  be  regarded  as 
official  services  when  the  consul  uses  his  seal  and  title  officially,  or 
either  of  them."     *     *     * 

Paragraph  489  of  the  regulations  of  1881  read  as  follows:  '489. 
All  acts  or  services  for  which  a  fee  is  prescribed  in  the  tariff  of  fees 
are  to  be  regarded  as  official  services,  and  the  fees  received  therefor 
are  to  be  reported  and  accounted  for  to  the  treasury  of  the  United 
States,'  except  when  otherwise  expressly  stated  therein." 

In  view  of  the  fact  that  it  is  not  certain  when  the  fees  in  question 
in  the  Mosby  case  were  earned,  and  of  the  difference  between  the 
consular  regulations  of  1874  and  1881,  we  shall  not  inquire  into  the 
correctness  of  the  decision  in  the  Mosby  case,  as  applied  to  the  pre- 
cise facts  there  considered,  but  will  examine  \}\e  question  here  pre- 

394 


CONSULAR  CASES 

sented  in  the  light  of  the  consular  regulations  of  1888,  and  as  one  of 
first  impression. 

By  section  1745  of  the  revised  statutes,  the  president  is  author- 
ized to  prescribe,  from  time  to  time,  the  rates  or  tariffs  of  fees  to  be 
charged  by  diplomatic  and  consular  officers  for  official  services,  "and 
to  designate  what  shall  be  regarded  as  official  services,  besides  such 
as  are  expressly  declared  by  law."  Section  1709,  Id.,  makes  it  the 
"duty"  of  consuls  and  vice  consuls  to  administer  upon  the  personal 
estate  left  by  any  citizen  of  the  United  States  who  shall  die  within 
their  consulate. 

The  fact  that  the  statute  makes  it  the  duty  of  a  consul  to  admin- 
ister on  personal  estates  gives  rise  to  the  clearest  implication  that 
fees  for  such  services  were  official  fees,  and  the  regulations  on  the 
subject  promulgated  by  the  president  clearly  support  this  view.  Thus, 
in  the  tariff  of  consular  fees  contained  in  paragraph  508  of  the  con- 
sular regulations  of  1888  it  is  provided,  in  item  numbered  56,  as  fol- 
lows: 

"56.  For  taking  into  possession  the  personal  estate  of  any  citi- 
zen who  shall  die  within  the  limits  of  a  consulate,  inventorying,  sell- 
ing and  finally  settling  and  preparing  or  transmitting,  according  to 
law,  the  balance  due  thereon,  five  per  cent,  on  the  gross  amount  of  such 
estate.  If  part  of  such  estate  shall  be  delivered  over  before  final  set- 
tlement, two  and  one-half  per  cent,  to  be  charged  on  the  part  so 
delivered  over  as  is  not  in  money,  and  five  per  cent,  on  the  gross 
amount  of  the  residue.  If  among  the  effects  of  the  deceased  are  found 
certificates  of  foreign  stocks,  loans,  or  other  property,  two  and  one- 
half  per  cent,  on  the  amount  thereof.  No  charge  will  be  made  for 
placing  the  official  seal  upon  the  personal  property  or  effects  of  such 
deceased  citizen,  or  for  breaking  or  removing  the  seals." 

And,  by  paragraph  375  of  the  same  regulations,  a  consular  of- 
ficer is  directed  to  report  to  the  treasury  department  fees  of  this  char- 
acter, and,  if  he  be  a  salaried  officer,  to  hold  the  same  subject  to  the 
order  of  the  department.  This  decisive  provision  is,  besides,  supple- 
mented by  paragraph  501  of  the  regulations,  in  which  it  is  declared 
that  "all  acts  or  services  for  which  a  fee  is  prescribed  in  the  tariff  of 
fees  are  to  be  regarded  as  official  services,  and  the  fees  charged  and 
received  therefor  are  to  be  reported  and  accounted  for  to  the  treasury 
of  the  United  States,  except  when  otherwise  expressly  stated  therein." 

As  the  statute  made  it  the  official  duty  of  a  consul  to  admin- 
ister upon  the  estates  of  American  citizens  dying  within  the  consular 
district,  and  the  president,  by  virtue  of  the  power  vested  in  him,  has 
clearly  placed  such  duties  in  the  category  of  "official  services,"  and 
jrequired  the  fees  earned  therefor  to  be  acoouttted  for  as  "official 

395 


CONSULAR  CASES 

fees,"  it  is  plain  that  the  aeeoimting  officer  of  the  treasury  properly- 
charged  Eaton  with  the  ainoimt  of  such  fees,  and  that  the  court  of 
claims  erred  in  its  ruling  to  the  contrary. 

The  ground  of  objection  urged  to  the  allowance  by  the  court  of 
claims  of  the  item  of  $5.73  is  stated  in  the  brief  to  be  that  the  dis- 
bursement "was  personal  or  diplomatic,  and  wholly  foreign  to  consu- 
lar business. ' '  We  are  imable,  however,  to  say  that  the  court  of  claims 
erred  in  its  finding  in  respect  to  this  item,  as  follows:  "The  petty 
item  for  lights  upon  the  king's  birthday  was  approved  by  the  depart- 
ment of  state,  and  appears  to  be  a  charge  within  the  discretion  of  that 
department.     It  is  therefore  allowed." 

It  follows  from  the  foregoing  considerations  that  the  only  error 
committed  by  the  court  below  was  in  treating  the  fees  for  the  settle- 
ment of  estates  as  unofficial,  when  they  should  have  been  held  to  be 
official.  But  this  does  not  render  it  necessary  to  reverse  the  judgment 
in  its  entirety,  but  only  to  modify  the  same.  Rev.  St.  §701 ;  Ballew 
v.  U.  S.,  160  U.  S.  187,  16  Sup.  Ct.  263.  This  modification  will  be 
effected  by  deducting  from  the  principal  sum  of  $3,456.98,  found  due 
by  the  court  of  claims,  $67.91,  being  the  amount  of  the  fees  improper- 
ly allowed.  The  judgment  of  the  court  of  claims  is  therefore  modified 
by  reducing  the  amount  thereof  to  $3,389.07,  and,  as  so  modified,  it 
is  affirmed.* 

UNITED  STATES  v.  JUDGE  LAWRENCE,  (1795,  U.  S.— France) 

.3  Dall.  42. 

Per  Curiam,  Supreme  Court. 

A  motion  was  made  by  the  attorney  general  of  the  United  States 
(Bradford)  for  a  rule  to  show  cause  why  a  mandamus  should  not  be 
directed  to  John  Lawrence,  judge  of  the  district  of  New  York,  in 
order  to  compel  him  to  issue  a  warrant,  for  apprehending  Captain 
Barre,  commandor  of  the  frigate  Le  Perdrix,  belonging  to  the  French 
republic. 

The  case  was  this :  Captain  Barre,  soon  after  the  dispersion  of  a 
French  convoy  on  the  American  coast,  voluntarily  abandoned  his 
ship,  and  became  a  resident  in  New  York.  The  vice-consul  of  the 
French  republic,  thereupon,  made  a  demand,  in  writing,  that  Judge 
La\NTence  would  issue  a  warrant  to  apprehend  Captain  Barre,  as  a  de- 
serter from  Lf*  Perdrix,  by  vir-(43)tue  of  the  9th  article  of  the  con- 
sular convention  between  the  United  States  and  France,  which  is 
expressed  in  these  words : 

"Art.  9.  The  consuls  and  vice  consuls  may  cause  to  be  arrested 


» From  18  Sap.  Ct.  Rep.  374. 

396 


CONSULAR  CASES 

the  captains,  officers,  mariners,  sailors,  and  all  other  persons,  being 
part  of  the  crews  of  the  vessels  of  their  respective  nations,  who  shall 
have  deserted  from  the  said  vessels,  in  order  to  send  them  back  and 
transport  them  out  of  the  country.  For  which  purpose,  the  said 
consuls  and  vice-consuls  shall  address  themselves  to  the  courts,  judges, 
and  officers  competent,  and  shall  demand  the  said  deserters  in  writ- 
ing, proving  by  an  exhibition  of  the  register  of  the  vessel,  or  ship's 
roll,  that  those  men  were  part  of  the  said  crews ;  and  on  this  demand, 
so  proved,  (saving,  however,  where  the  contrary  is  proved)  the  de- 
livery shall  not  be  refused;  and  there  shall  be  given  all  aid  and  as- 
sistance to  the  said  consuls  and  vice-consuls  for  the  search,  seizure, 
and  arrest,  of  the  said  deserters,  who  shall  even  be  detained  and  kept 
in  the  prisons  of  the  country,  at  their  request  and  expense,  until  they 
shall  have  found  an  opportunity  of  sending  them  back;  but  if  they 
be  not  sent  back  within  three  months,  to  be  counted  from  the  day  of 
their  arrest,  they  shall  be  set  at  liberty,  and  shall  be  no  more  arrested 
for  the  same  cause."     2  Vo.  392. 

To  the  vice-consul 's  demand  the  judge  answered,  ' '  that  it  was,  in 
his  opinion,  necessary,  before  a  warrant  could  issue,  that  the  appli- 
cant should  prove  by  the  register  of  the  ship,  or  role  d' equipage,  that 
Captain  Barre  was,  in  fact,  one  of  the  crew  of  Le  Perdrix. ' '  The  vice- 
consul  replied,  "that  the  ship's  register  was  not  in  his  possession;  but, 
at  the  same  time,  stated  various  reasons  why  he  should  be  admitted  to 
produce  collateral  proof  of  the  fact  in  question,  instead  of  being  ob- 
liged to  exhibit  the  ship's  register  itself;  and  declared,  that  in  such 
case,  he  would  give  the  judge  all  the  proof  that  could  be  desired." 
The  judge  persevering  in  his  original  opinion  on  the  subject,  that  "the 
mode  of  proof  mentioned  in  the  9th  article  of  the  convention  was  the 
only  legitimate  one,  and  that  he  could  not  dispense  with  it ; "  the  vice- 
consul  obtained  a  copy  of  the  role  d' equipage,  certified  by  the  French 
vice-consul  at  Boston,  under  the  consular  seal;  and  transmitted  it  to 
the  judge,  with  another  demand  for  a  warrant  to  arrest  Captain  Barre ; 
contending  that  this  copy  was  entitled  to  the  same  respect  as  the 
original  instrument,  by  virtue  of  the  5th  article  of  the  convention, 
which  is  in  these  words : 

"Art.  5.  The  consuls  and  vice-consuls  respectively  shall  have  the 
exclusive  right  of  receiving  in  their  chancery,  or  on  board  of  vessels, 
the  declarations  and  all  the  other  acts,  which  the  captains,  masters, 
crews,  passengers,  and  merchants  of  their  nation  may  choose  to  make 
there,  even  their  testaments  and  other  disposals  by  last  will:  and  the 
copies  of  said  acts,  duly  (44)  authenticated  by  the  said  consuls,  or 
vice-consuls,  under  the  seal  of  their  consulate,  shall  receive  faith  in 
law,  equally  as  their  originals  would,  in  all  the  tribunals  of  the  domin- 

397 


CONSULAR  CASES 

ions  of  the  Most  Christian  King,  and  of  the  United  States.  They  shall 
also  have,  and  exclusively,  in  ease  of  the  absence  of  the  testamentary 
executor,  administrator,  or  legal  heir,  the  right  to  inventory,  liqui- 
date and  proceed  to  the  sale  of  the  personal  estate  left  by  subjects  or 
citizens  of  their  nation,  who  shall  die  within  the  extent  of  their  con- 
sulate; they  shall  proceed  therein  with  the  assistance  of  two  mer- 
chants of  their  said  nation,  or  for  want  of  them,  of  any  other  at  their 
choice,  and  shall  cause  to  be  deposited  in  their  chancery,  the  effects 
and  papers  of  the  said  estates;  and  no  officer,  military,  judiciary,  or 
of  the  police  of  the  country,  shall  disturb  them  or  interfere  therein, 
in  any  manner  whatsoever;  but  the  said  consuls  and  vice-consuls  shall 
not  deliver  up  the  said  effects,  nor  the  proceeds  thereof,  to  the  lawful 
heirs,  or  to  their  order,  till  they  shall  have  caused  to  be  paid  all 
debts  which  the  deceased  shall  have  contracted  in  the  country;  for 
which  purpose  the  creditors  shall  have  the  right  to  attach  the  said 
effects  in  their  hands,  as  they  might  in  those  of  any  other  individual 
whatever,  and  proceed  to  obtain  sale  of  them  till  payment  of  what 
shaD  be  lawfully  due  to  them.  When  the  debts  shall  not  have  been 
contracted  by  judgment,  deed,  or  note,  the  signature  whereof  shall 
be  known,  payment  shall  not  be  ordered  but  on  the  creditor's  giving 
sufficient  surety,  resident  in  the  country,  to  refund  the  sums  he  shall 
have  imduly  received,  principal,  interest  and  costs;  which  surety 
nevertheless  shall  stand  duly  discharged,  after  the  term  of  one  year 
in  time  of  peace,  and  of  two  in  time  of  war,  if  the  demand  in  dis- 
charge can  not  be  formed  before  the  end  of  this  term  against  the 
heirs  who  shall  present  themselves.  And  in  order  that  the  heirs  may 
not  be  unjustly  kept  out  of  the  effects  of  the  deceased,  the  consuls 
and  vice-consuls  shall  notify  his  death  in  some  one  of  the  gazettes 
published  within  their  consulate,  and  they  shall  retain  the  said  effects 
in  their  hands  four  months  to  answer  all  demands  which  shall  be  pre- 
sented ;  and  they  shall  be  bound  after  this  delay  to  deliver  to  the  per- 
sons succeeding  thereto,  what  shall  be  more  than  sufficient  for  the 
demands  which  shall  have  been  formed."    2  Vol.  384. 

Tho  judge,  however,  declared  that  "he  did  not  consider  the  copy 
of  the  register,  to  be  the  kind  of  proof  designated  by  the  9th  article 
of  the  convention ;  and  that  till  the  proof  specified  by  the  express 
words  of  the  article  was  exhibited,  he  could  not  deem  himself  author- 
ized to  issue  a  warrant  for  apprehending  Captain  Barre." 

Under  the.se  circumstances,  the  minister  of  the  French  republic 
applied  to  the  executive  of  the  United  States,  complaining  (45)  of 
the  judge's  refusal  to  issue  a  warrant  against  Captain  Barre,  as  a 
manifest  departure  from  the  positive  provisions  of  the  consular  con- 
vention ;  and  the  present  motion  was  made,  in   order  to  obtain  the 

398 


CONSULAR  CASES 

opinion  of  the  supreme  court,  upon  the  subject,  for  the  satisfaction  of 
the  minister. 

The  rule  was  opposed  by  Ingersoll  and  W.  Tilgman,  who  con- 
tended, I.  That  the  original  register  of  the  vessel,  or  ship's  roll,  was 
the  only  admissible  evidence  under  the  9th  article  of  the  convention; 
and  II.  That  in  the  present  case  the  judge  has,  in  fact,  given  a  judg- 
ment; and  although  a  mandamus  will  lie  to  compel  the  judge  of  an 
inferior  court,  to  proceed  to  give  judgment,  it  will  not  lie  to  prescribe 
what  judgment  he  shall  give. 

].  The  treaty  has  placed  the  subject  in  controversy  upon  a 
footing  different  from  the  law  of  nations;  for,  independent  of  posi- 
tive compact,  no  government  will  surrender  deserters,  or  fugitives,  who 
make  an  asylimi  of  its  territory.  This,  then,  is  a  new  law  introduc- 
tory of  a  new  remedy ;  and  whenever  a  new  remedy  is  so  introduced, 
(more  especially  in  a  case  so  highly  penal)  it  must  be  strictly  con- 
strued. 1  Wil.  164.  4  Bac.  Abr.  647,  651.  The  9th  article  of  the  consu- 
lar convention,  may,  therefore,  be  considered  in  a  twofold  point  of 
view — 1st.  As  to  the  true  construction  of  the  words :  and  2d.  As  to  the 
competency  of  a  copy  of  the  register,  or  ship's  roll,  to  be  received  in 
evidence,  by  any  analogy  to  the  common  law  rules  of  evidence. — 1st 
The  words  of  the  article  are  full  and  express,  that  the  consul  shall 
prove  the  deserters,  whose  arrest  he  demands,  to  be  part  of  the  ship's 
crew,  "by  an  exhibition  of  the  register  of  the  vessel,  or  ship's  roll." 
If  those,  who  drew  the  instrument,  and  appear  throughout  to  have  per- 
fectly imderstood  the  import  of  the  words  they  used,  had  not  intended 
to  fix  a  specific  mode  of  proof,  a  specific  mode  would  not  have  been 
mentioned  in  this  case;  but  the  kind  of  evidence  would  have  been 
left  at  large,  as  in  the  14th  article,  where,  in  another  case,  proof  of 
citizenship  is  to  be  made,  "by  legal  evidence."  But,  in  fact,  the  ship's 
roll  is  the  best  evidence  which  the  nature  of  the  case  admits;  and, 
if  any  other,  is  allowed,  it  must  depend  upon  the  mere  discretion  of 
the  judge.  The  individuals  of  the  French  nation,  as  well  as  the  Re- 
public, are  interested  in  the  construction  of  the  article;  since  it  de- 
prives them  of  that  protection  within  our  territory,  to  which  they 
would  otherwise  be  entitled ;  and  their  interest  becomes  peculiarly  im- 
portant, when  we  consider  the  existing  circumstances  of  the  nation. 
Besides,  whatever  inconveniency  might  flow  from  this  strict  construc- 
tion, if  it  is  the  genuine,  fixed,  meaning  of  the  treaty,  the  court  can 
not  change  it  on  that  account.  4  Bac.  Abr.  652,  10  Mod.  344,  The 
inconveniences,  however,  are  aggravated  (46)  beyond  their  real  force. 
The  cases  contemplated  were,  obviously,  cases  of  desertion  before  the 
vessel  left  the  port,  in  which  it  would  always  be  easy  to  exhibit  the 
register,  before  a  warrant  was  issued.     The  act  of  congress,  vesting 

399 


CONSULAR  CASES 

this  jurisdiction  in  the  district  judges,  may,  indeed,  be  too  restricted, 
inasmuch  as  it  does  not  give  each  district  judge  a  power  to  issue  his 
warrant  in  all  parts  of  the  United  States,  by  which  the  necessity  of 
applying  to  the  judge  of  every  district,  into  which  a  deserter  might 
escape,  and  the  consequent  necessity  of  exhibiting  the  original  roll  on 
every  such  application,  would  be  avoided.  The  inconveniences  sug- 
gested might  therefore  be  obviated  by  congress;  and  even  the  govern- 
ment of  France  might  introduce  a  remedy,  by  directing  the  original 
roll  in  cases  of  desertion,  to  be  deposited  with  the  consul,  and  certi- 
fied copies  to  be  furnished  to  the  captains  of  the  respective  ships. 
But  it  is  contended,  that  admitting  the  exhibition  of  the  original  roll 
to  be  requisite,  still  it  is  sufficient  to  exhibit  it  before  the  person  is 
delivered : — it  need  not  be  exhibited  before  the  warrant  issues  to  ar- 
rest him.  This,  however,  can  not  be  the  true  construction  of  the  ar- 
ticle, upon  a  fair  analysis  of  its  different  parts.  In  the  first  part  the 
arrest  of  deserters  only  is  mentioned,  "in  order  to  send  them  back  and 
transport  them  out  of  the  country;" — then,  it  is  said,  **for  which  pur- 
pose (that  is,  for  the  purpose  of  the  arrest)  the  consuls  and  vice-con- 
suls shall  address  themselves  to  the  courts,  judges,  and  officers  com- 
petent, and  shall  demand  the  said  deserter  in  writing,  proving  by  an 
exhibition  of  the  register,  or  ship's  roll,  that  those  men  were  part  of 
the  crew,  etc."  and  the  clause  of  delivery  follows,  providing,  that  "on 
this  demand,  so  proved,  the  delivery  shall  not  be  refused."  On  what, 
then,  is  the  judge  to  ground  his  warrant,  if  not  on  the  exhibition  of 
the  roll  ?  there  is  no  other  proof  mentioned  in  the  article ;  and,  certain- 
ly, proof  of  some  kind  must  be  made,  before  the  warrant  issues.  '  *  No 
warrant  shall  issue  (says  the  6th  article  of  the  amendment  to  the 
federal  constitution)  but  upon  probable  cause,  supported  by  oath, 
or  affirmation:"  And  in  this  case,  if  previous  proof  has  been  made, 
there  is  nothing  to  prevent  the  warrant's  containing  a  clause  of  imme- 
diate delivery;  since  the  deserter  is  only  to  be  committed  and  im- 
prisoned at  the  instance  of  the  consul. — 2d.  If,  then,  an  exhibition 
of  the  ship's  roll  is  necessary,  the  second  consideration,  arising  on  the 
construction  of  the  article,  is,  whether  by  analogy  to  the  common  law 
rules  of  evidence,  a  copy  ought  to  be  received,  instead  of  the  original. 
It  is  a  general  rule,  that  the  copy  of  a  deed,  or  other  extraneous  proof 
of  its  contents,  can  not  be  given  in  evidence,  unless  it  is  first  shown 
that  the  original  did  once  exist,  and  that  it  had  been  destroyed  or 
lost,  or  is  in  the  possession  of  the  adverse  party.  1  Vez.  389.  Esp. 
Dig.  780.  782.  10  Co.  (47)  92.  In  the  present  case,  the  only  requisite 
of  the  rule  that  is  satisfied,  establishes  the  existence  of  the  roll;  but 
proves,  at  the  same  time,  that  it  has  not  been  lost  or  destroyed,  and 
that  it  is  (or  at  least  that  it  was  when  the  warrant  was  applied  for) 

400 


CONSULAR  CASES 

in  the  possession  of  the  consul  at  Boston.  So  strictly  has  the  rule 
been  adhered  to,  that  even  the  acknowledgment  of  the  obligor  will  not 
be  received  as  evidence  that  a  bond  was  executed  by  him;  the  sub- 
scribing witness  must  be  produced.  Doug.  205.  4  Burr.  2275.  As  to 
the  inference  drawn  by  the  consul,  from  the  5th  article  of  the  conven- 
tion, in  support  of  a  copy  of  the  roll  as  competent  evidence,  the 
article  clearly  relates  to  matters  transacted  by  consuls  in  virtue  of 
their  specified  consular  powers,  but  not  to  the  authentication  of  for- 
eign instruments,  deeds,  or  commissions. 

II.  But  whatever  may  be  the  opinion  of  this  court  on  the  con- 
struction of  the  article  in  question,  they  can  not  interpose  by  man- 
damus, to  compel  the  district  judge  to  adopt  their  judgment,  in- 
stead of  his  own,  as  the  rule  of  decision,  in  a  case  judicially  before 
him.  The  supreme  court  may,  it  is  true,  issue  writs  of  mandamus,  in 
cases  warranted  by  the  principles  and  usages  of  law;  (1  Vol.  p.  58.  s. 
14.)  but  there  is  no  usage  or  principle  of  law  to  warrant  the  issuing 
of  a  mandamus  in  a  case  like  the  present.  By  the  act  of  congress  (2 
Vol.  p.  56.)  the  district  judge  is  appointed  the  competent  judge,  for 
the  purpose  expressed  in  the  9th  article  of  the  convention ;  the  consul 
applied  to  him  as  such;  and  the  judge  refused  to  issue  his  warrant, 
because,  in  his  opinion,  the  evidence  required  by  the  article  was  not 
produced.  The  act  of  issuing  the  warrant  is  judicial,  and  not  minis- 
terial; and  the  refusal  to  issue  it  for  want  of  legal  proof,  was  the 
exercise  of  a  judicial  authority.  Where  any  other  court  has  compe- 
tent jurisdiction,  the  court  will  not  interfere  by  mandamus  to  control 
it.  Esp.  Dig.  668.  4  Burr.  2295.  In  a  variety  of  cases  the  stress 
is  laid  on  the  act  being  ministerial,  and  not  judicial.  1  Wils.  125. 
283.  Esp.  Dig.  662.  663.  666.  669.  512.  552.  530.  1  Stra.  113.  392. 
1  Vent.  187.  T.  Raym.  214.  1  Bl.  Rep.  640.  3  Bac.  Abr.  531.  1 
Burr.  131.  4  Com.  Dig.  207.  208.  Carth.  450.  2  Stra.  835.  Sayre's 
Rep.  160.  It  is  justly  said,  however,  that  a  writ  of  mandamus  ought 
in  all  cases  to  be  granted,  wh-^re  the  law  has  provided  no  specific  rem- 
edy, though  on  the  principles  of  justice  and  good  government,  there 
ought  to  be  one.  Esp.  Dig.  661.  4  Com.  Dig.  205.  And,  it  has  been 
generally  said,  that  writs  of  mandamus  are  either  to  restore  a  person 
deprived  of  some  corporate,  or  other  franchise,  or  right ;  or  to  admit  a 
person  legally  entitled;  3  Burr.  1267.  2  Burr.  1043.  or  (upon  a  more 
extensive  basis)  to  prevent  a  failure  of  justice,  to  enforce  the  execution 
of  the  common  law,  and  to  effectuate  some  (48)  statute;  but  it  has 
never  been  allowed  as  a  private  remedy  for  a  party,  except  in  cases 
arising  on  the  9  Ann.  c.  20.  Nor  has  it  ever  been  granted  to  a  person 
who  has  exercised  a  discretionary  power.  3  Bac.  Abr.  535.  2  Stra.  881. 
892.    Esp.  Dig.  668.    2  T.  Rep.  338.    Esp.  Dig.  668.    2  T.  Rep.  338. 

401 


CONSULAR  CASES 

Esp.  Dig.  667.  3  Bac.  Abr.  536.  Andr,  183.  Thus,  the  writ  was  refused, 
where  a  visitor  has  exercised  his  jurisdiction,  and  deprived  a  person 
of  his  oflice  in  a  college:  1  Wils  206.  4  Com.  Dig.  209.  Andr. 
176.  Esp.  Dig.  667;  where  commissioners  have  issued  a  certificate 
of  bankrupts.  1  Atk.  82.  2,  Vez.  250.  1  Cook.  Bank.  L.  499.  And  it 
should  be  shown  that  the  inferior  court  had  made  default,  for  the  su- 
perior court  will  not  presume  it.  Esp.  Dig.  670.  Bull.  N.  P.  199. 
Upon  the  whole  of  these  authorities  it  appears,  that  a  mandamus 
is  founded  on  the  idea  of  a  default;  as  where  an  inferior  court  will 
not  proceed  to  judgment,  or  a  ministerial  officer  will  not  do  an  act 
which  he  ought  to  do;  but  there  is  no  instance  of  a  mandamus  being 
issued  to  a  judge,  who  has  proceeded  to  give  judgment  according  to 
the  best  of  his  abilities.  It  ought,  likewise,  to  be  observed,  that  where 
a  fact  is  doubtful,  a  7nandamus  never  issues  till  it  is  determined  by  a 
jury,  either  on  a  feigned  issue,  or  on  a  traverse  to  the  return  imder 
the  statute :  For,  how  can  this  court  determine  what  the  material  fact 
of  the  present  case  is?  And  if  a  mandamus  is  issued,  what  will  be 
the  command? — to  receive  certain  evidence,  or,  at  all  events,  to  issue 
a  warrant  for  apprehending  Captain  Barre?  If,  then,  the  supreme 
court  take  the  matter  up,  in  the  way  proposed,  they  must  examine  the 
proof  of  Captain  Barre 's  being  a  deserter ;  and  so  make  themselves  the 
court  competent  for  this  business,  contrary  to  the  express  meaning 
and  language  of  the  law. 

The  attorney  general,  in  reply,  premised,  that  the  executive  of  the 
United  States  had  no  inclination  to  press  upon  the  court,  any  par- 
ticular construction  of  the  article  on  which  his  motion  was  founded: 
but  as  it  is  the  wish  of  our  government  to  preserve  the  purest  faith 
with  all  nations,  the  president  could  not  avoid  paying  the  highest 
respect,  and  the  promptest  attention,  to  the  representation  of  the 
minister  of  France,  who  conceived  that  the  decision  of  the  district 
judge  involved  an  infraction  of  the  conventional  rights  of  his  republic. 
In  construing  treaties,  neither  party  can  claim  an  exclusive  jurisdic- 
tion. If  either  party  supposes  that  there  is  in  the  conduct  of  the 
other,  a  departure  from  the  meaning  of  a  treaty,  it  is  the  established 
course  in  foreign  countries,  to  apply  to  the  government  for  immediate 
redress:  and,  where  that  application,  for  any  cause,  proves  ineffectual, 
the  controversy  is  referred  to  a  negotiation  between  the  powers  at 
variance.  In  the  present  case,  however,  from  the  nature  of  the  sub- 
ject, as  well  as  from  (49)  the  spirit  of  our  political  constitution,  the 
judiciary  department  is  called  upon  to  decide;  for  it  is  essential  to  the 
independence  of  that  department,  that  judicial  mistakes  should  only 
be  corrected  by  judicial  authority.  The  president,  therefore,  intro- 
duces the  question  for  the  consideration  of  the  court,  in  order  to  in- 

402 


CONSULAR  CASES 

sure  a  punctual  execution  of  the  laws ;  and,  at  the  same  time,  to  mani- 
fest to  the  world,  the  solicitude  of  our  government  to  preserve  its 
faith,  and  to  cultivate  the  friendship  and  respect  of  other  nations. 

I.  The  question  is  certainly  an  interesting  and  important  one: 
but  it  ought  not  to  be  affected  by  any  circumstances  respecting  the 
hardship  of  Captain  Barre's  fate,  or  the  crisis  of  French  affairs.  If 
Captain  Barre  suffers  any  injury,  he  might,  on  a  habeas  corpus  be 
relieved ;  and  no  change  or  fluctuations  in  the  interior  policy  of 
France,  can  release  the  obligation  of  our  government  to  perform  its 
public  engagements.  The  case  must,  therefore,  be  considered  as  an 
abstract  case,  depending  on  the  fair  interpretation  of  an  article  in  a 
public  treaty.  This  article  contemplates,  1st.  the  arrest  of  deserters 
from  French  vessels  in  our  ports — and,  2d.  the  delivering  of  those  de- 
serters to  the  consul,  that  they  may  be  sent  out  of  the  country.  The 
arrest  may  be  made  on  any  kind  of  proof,  the  oath  of  witnesses,^  the 
confession  of  the  party,  or  authenticated  papers,  showing  prima  facie, 
that  the  person  against  whom  the  warrant  is  demanded,  belonged  to 
the  crew  of  a  French  ship.  But  the  delivery  is  obviously  a  subsequent 
act,  to  be  performed  after  the  party  has  been  brought  before  the 
judge ;  when,  not  only  the  allegations  against  him,  but  his  answers 
and  defence,  are  heard,  and  the  judge  has  decided  that  he  is  an  object 
of  the  article.  Natural  justice,  and  the  safety  of  our  citizens,  re- 
quire that  such  a  hearing  should  take  place ;  and  it  is,  indeed,  neces- 
sarily implied  in  those  words  of  the  article  ' '  saving  where  the  contrary 
is  proved;"  which  point  to  a  time  distinct  from  that  of  issuing  the 
warrant,  when  the  party  was  not  present,  had  not  been  heard,  and 
could  not  therefore  have  proved  the  contrary,  even  if  such  proof  were 
in  his  power;  as  by  showing  that  he  never  signed  the  ship's  roll,  or 
that  he  had  been  lawfully  discharged.  Neither  principle  nor  analogy 
to  other  cases,  will  justify  a  call  for  the  original  roll,  merely  to  (50) 
bring  the  party  to  a  hearing,  whatever  strictness  of  proof  may  be 
exacted  to  warrant  his  being  delivered.  In  England  the  distinction 
is  uniformly  recognized:  the  grounds  for  issuing  a  warrant  are  not 
strong;  for  finding  an  indictment  they  must  be  stronger;  and  for 
conviction  and  judgment  they  are  always  violent.  The  construction 
contended  for,  in  support  of  the  motion,  involves  no  inconveniency ; 
because  the  judge  must  receive  a  reasonable  satisfaction  before  he  is- 
sues his  warrant;  and  before  he  delivers  the  deserter,  he  may  insist 

^Wilson,  Justice.    Does  it  appear  that  any  oath  was  taken  in  this  case? 

Bradford;  No:  A  warrant,  which  had  been  issued  by  the  district  judge  of 
Pennsylvania — various  official  letters, — and  Captain  Barre's  own  statement,  were 
offered  to  be  produced;  but  the  point  was  put  by  the  judge  on  the  necessity  of 
producing  the  original  roll,  in  exclusion  of  every  other  species  of  testimony.  This, 
therefore,  is  the  only  question  before  the  court, 

403 


CONSULAR  CASES 

on  the  exhibition  of  the  roll :  but  the  adverse  doctrine  is  attended  with 
the  most  embarrassing  consequences.  Suppose  a  man  deserts  just  as 
the  vessel  sails  on  a  distant  voyage,  must  she  return  to  port  ?  Accord- 
ing to  the  maritime  regulations,  her  register  must  remain  on  board; 
and,  in  such  a  case,  a  deserter  could  never  be  surrendered.  Again : — 
Suppose  a  French  vessel  of  war  takes  a  prize,  puts  a  part  of  her 
crew  on  board,  and  sends  the  prize  to  America,  while  she  remains  her- 
self at  sea:  the  mariners  may  desert  from  the  prize  with  impunity, 
under  the  very  eye  of  the  minister  or  consul;  as  the  original  roll 
would  continue  on  board  the  vessel  of  war.  If  there  are  several  prizes 
sent  in,  the  difficulty  is  proportionately  increased.  But  all  those  em- 
barrassments are  avoided  by  a  different  interpretation  of  the  article: 
— by  allowing  the  deserters  to  be  arrested,  even  on  a  reasonable  sus- 
picion, and  to  be  detained  'till  proof  of  their  desertion  can  be  pro- 
cured. The  detention,  however,  could  not,  under  such  circumstances, 
exceed  three  months,  agreeably  to  the  terms  of  the  treaty;  and  that 
part  of  the  article  seems  strongly  to  presume  the  vessel  to  be  absent 
at  the  time  of  the  arrest,  as  it  provides  for  his  imprisonment  until  he 
can  be  sent  out  of  the  country.  On  the  adverse  construction,  like- 
wise, the  article  must  be  deemed  to  regard  as  one  act,  the  inspection 
of  the  roll,  the  issuing  of  the  warrant,  and  the  surrender  of  the  de- 
serter; which  would  operate  as  a  general  press  warrant,  and  might 
become  dangerous  in  the  extreme  to  the  liberty  of  the  citizens;  for, 
every  man  bearing  a  name  enrolled  upon  the  ship's  register,  would  be 
liable  to  be  arrested  and  put  on  board  a  French  vessel,  if  no  hearing 
took  place  subsequent  to  the  arrest.  Still,  however,  it  is  clear,  that 
when  the  article  speaks  of  a  consul's  addressing  himself  to  our  courts, 
it  is  in  order  to  procure  assistance  "to  send  the  deserters  back,  and 
transport  them  out  of  the  country;"  and  not  merely  to  obtain  an 
arrest.  But  the  question  then  arises,  whether,  even  for  the  purpose 
of  obtaining  a  delivery  of  the  deserter,  there  must  be  an  actual  pro- 
duction of  the  register,  or  ship's  roll?  Is  that  the  only  proof  which 
can  be  allowed,  or  is  it  merely  the  specification  of  one  mode  of  proof, 
without  excluding  other  modes?  The  article  provides  for  a  case  in 
which  there  shall,  peremptorily,  be  a  delivery;  but  neither  (51)  in  its 
terms,  nor  in  its  nature,  does  it  preclude  a  delivery  in  other  cases, 
where  the  facts  are  satisfactorily  ascertained  by  other  evidence.  The 
inconveniences  of  that  doctrine  would  be  insurmountable.  There  must 
be  an  original  roll  to  produce  in  every  district,  into  which  a  deserter 
could  escape.  If  the  roll  were  burnt,  and  all  the  crew  desert,  nay,  if 
the  deserters  themselves  were  to  seize  upon  and  destroy  the  roll,  the 
judge  is  not  only  under  no  obligation  to  arrest  and  deliver  them,  but 
he  is  precluded  from  doing  so.    Such  a  construction,  so  destructive  of 

404 


CONSULAR  CASES 

the  fair  advantages  of  a  public  compact,  ought  not  to  be  tolerated. 
"All  civil  laws  and  all  contracts  in  general,  (says  Rutherford,  2  Inst. 
B.  2.  c.  7.  s.  8.  p.  827.)  are  to  be  so  construed  as  to  make  them  produce 
no  other  effect,  but  what  is  consistent  with  reason,  or  with  the  law 
of  nature."    It  is  inconsistent  with  reason,  that  a  provision  intended 
to  guard  the  contracting  parties  from  the  inconveniency  of  the  deser- 
tion of  their  mariners,  should,  in  the  very  mode  of  expression,  defeat 
itself ;  and  that  interpretation,  which  renders  a  treaty  null  and  without 
effect,  can  not  be  admitted.    Vatt.  B.  2.  c.  17,  s.  283,  287,  290.    Nor 
is  the  common  law  without  an  analogy,  competent  to  obviate  the  diffi- 
culty ;  for,  wherever  an  original  is  either  a  record,  or  of  a  public  na- 
ture, and  would  be  evidence,  if  produced,  an  immediate  sworn  copy 
will  avail.     5  Wood.  p.  320,     Espinasse.     As,  in  the  instance  of  the 
Cottonian  Collection,  whose  papers  are  not  allowed  to  be  sent  abroad, 
a  copy  is  always  received  in  evidence;  and  since  a  ship's  register 
must,  from  the  nature  of  the  instrument  and  the  rules  of  the  marine, 
be  on  board,  the  reason  is,  surely,  equally  cogent,  for  receiving  a  copy 
of  it  in  proof  of  any  judicial  inquiry,  when  the  ship  is  necessarily  at 
a  distance.    The  opposite  argument  goes,  indeed,  to  exclude  stronger 
testimony  than  the  roll;  for  a  deserter's  confession  of  the  fact,  before 
the  judge,  would  not  be  sufficient  to  dispense  with  the  production  of 
the  instrument  itself.    The  constitutions  of  the  United  States  and  of 
the  state  of  Pennsylvania,  seem  to  have  made  no  provision  (except  the 
former  in  the  case  of  treason)  for  a  conviction  by  the  confession  of  the 
party ;  yet,  the  absurdity  of  proceeding  to  try  a  man  for  a  crime,  after 
he  has  pleaded  guilty  to  the  charge,  has  been  too  obvious  to  receive  any 
sanction  from  the  practice  of  our  courts.    But  that  absurdity  is  urged 
as  law  in  the  present  case.     Captain  Barre  had  confessed  the  exist- 
ence of  the  roll  subscribed  by  him,  and  his  desertion  from  the  ship, 
still,  it  is  contended,  that  the  judge  must  wait  for  the  exhibition  of 
the  roll  to  prove  the  fact  acknowledged; — "to  take  a  bond  of  fate; 
and  make  assurance  doubly  sure."    This,  however,  would  be  a  mock- 
ing of  justice — a  palpable  evasion  of  the  treaty.    It  is  said,  that  the 
surrender  of  deserters  is  an  act  odious  on  principles  (52)  of  humanity, 
as  well  as  policy ;  but  the  remark  is  not  uniformly  just.    In  the  case 
of  one  army  giving  encouragement  to  deserters  from  another,  the  sur- 
render would  be  faithless  and  iniquitous;  but  that  bears  no  analogy 
to  the  present  case;  and,  in  another  case,  which  is  analogous  to  the 
present,  the  United  States  have  thought  it  so  reasonable  and  right, 
that  they  have  directed  any  deserter,  under  contract  for  a  voyage,  to 
be  apprehended,  and  delivered  to  the  captain  of  the  ship — act  con- 
gress, ch.  29.  s.  7.  passed  20th  July,  1790.     But  the  article  of  the 
treaty  is  affirmative,  or  directory,  and  not  negative;  and  the  distinc- 

405 


CONSULAR  CASES 

tion  in  construing  laws  so  distinguished  could  never  be  more  properly 
enforced.  Thus,  though  the  statute  of  Henry  for  holding  the  quarter 
sessions,  prescribes  a  particular  day,  the  court  being  held  on  another 
day,  it  was  deemed  valid.  So,  where  a  day  was  fixed  by  the  act  for 
appointing  overseers  of  the  poor,  the  appointment  was  good,  though 
made  on  another  day.  Upon  the  whole,  the  proof  given  and  tendered 
in  this  case,  was,  ]st,  the  warrant  of  the  district  judge  of  Pennsyl- 
vania, which,  on  common  law  principles,  would  be  sufficient  to  procure 
the  indorsement  or  warrant  of  any  other  judge; — 2d,  the  official  let- 
ters and  statement  of  Captain  Barre,  proving  the  fact,  as  conclusively 
to  every  purpose  of  truth  and  justice,  as  the  exhibition  of  his  signa- 
ture to  the  ship's  roll;  and  being,  in  effect,  a  written  confession,  a 
species  of  proof  which  is  admitted  even  in  the  case  of  treason : — and 
3d,  a  copy  of  the  ship's  roll  certified  by  the  vice-consul.  This  ought 
not,  perhaps,  to  be  regarded  as  complete  evidence  under  the  5th  arti- 
cle of  the  convention,  which  seems  only  to  relate  to  acts  made  before, 
or  taken  in  the  presence  of,  the  consul.  It  is,  however,  entitled  to,  at 
least,  as  much  respect  as  a  notarial  certificate,  which  commands  full 
faith  in  all  commercial  countries. 

II.  If.  then,  the  judge  ought  not  to  have  refused  a  warrant  for 
apprehending  Captain  Barre,  this  court  ought  to  compel  him  to  grant 
one.  by  issuing  a  mandamus.  The  general  principle  of  issuing  that 
writ,  is  founded  on  the  necessity  of  affording  a  competent  remedy  for 
every  right ;  and  it  constrains  all  inferior  courts  to  perform  their  duty, 
unless  they  are  vested  with  a  discretion.  Esp,  3  Burr.  1267.  The 
treaty  is  the  supreme  law  of  the  land;  and  if  an  absolute  discretion 
is  given  to  the  district  judge,  it  is  conceded,  that  this  court  can  not 
interpose  to  control  and  decide  it.  But  much  will  depend  on  the 
nature  of  the  discretion  given  to  the  judge;  since  a  legal  discretion  is 
sometimes  as  much  implied  in  the  exercise  of  a  ministerial,  as  in  the 
exerci.se  of  a  judicial  function.  In  the  present  case  the  treaty  con- 
templates an  arrest,  and  a  delivery^  of  the  deserter :  it  may,  therefore, 
be  considered  as  one  thing (53)  to  issue  the  warrant,  and  as  another, 
very  different  in  nature  and  jurisdiction,  to  decide  upon  a  hearing 
of  the  parties.  In  Stra.  881,  a  mandamus  was  refused,  because  the 
granting  of  a  license  was  discretionary  in  the  justices:  but  wherever 
an  act  of  parliament  peremptorily  directs  a  thing  to  be  done,  though 
it  should  be  of  a  judicial  nature,  if  no  discretion  is  vested  in  the  in- 
ferior officer  or  court,  a  m/indamus  will  lie.  Thus,  the  acts  of  the 
judge  of  probates  etc.  are  judicial  acts;  yet,  as  the  act  of  parliament 
declares  that  administration  shall  be  given  to  the  next  of  kin,  a  man- 
damus will  i.ssue  directing  the  administration  to  be  granted  to  the 
next  of  kin,  and  if  it  appears  on  the  return  that  A.  B.  is  next  of  kin,  a 

406 


CONSULAR  CASES 

mandamus  will  issue  to  grant  it  to  him.  1  Stra.  42,  93,  211.  If  the 
district  judge  had  returned,  that  he  was  of  opinion,  that  Captain 
Barre  was  not  a  deserter,  it  might  have  been  sufficient;  but  he  has  re- 
turned that  he  would  not  examine  the  evidence,  because  it  was  not 
evidence.  Suppose  the  ship's  roll  had  been  exhibited,  and  the  judge 
had  refused  to  issue  the  warrant,  because  it  appeared  that  Captain 
Barre  had  taken  the  oath  of  citizenship,  would  not  a  mandamus  issue 
under  such  circumstances?  4  Burr.  1991.  2  Stra.  992.  But  issuing 
the  warrant  is  merely  a  ministerial  act,  and  where  words  are  so 
strongly  directory  as  in  the  article  of  the  treaty,  without  any  ex- 
press investment  of  discretion,  a  mandamus  has  always  been  awarded. 
1  Wils.  283.  1  Black.  Rep.  640.  1  Stra.  553.  113.  Doug.  182.  Though 
the  commissioners  returned,  that  they  had  reason  to  doubt  (pursuing 
the  words  of  the  law  of  Pennsylvania,  2  Vol.  Dall.  Edit.  p.  494)  the 
truth  of  the  bankrupt's  conformity,  the  supreme  court  at  first  hesi- 
tated, whether  a  mandamus  ought  not  to  issue,  though  it  was  eventual- 
ly refused,  on  the  ground  of  the  discretion,  which  the  law  gave  to 
the  commissioners.  But  one  great  ingredient  in  the  exercise  of  this 
controling  jurisdiction,  by  mandamus,  is,  that  there  exists  no  other 
specific  remedy  for  the  party,  and  that  upon  the  principles  of  jus- 
tice and  good  government,  he  ought  to  have  one.  2  Burr.  1045.  3 
Burr.  1266,  1659.  4  Burr.  2188.  In  the  present  case,  the  district 
judge  is  the  only  competent  judge  to  issue  the  warrant;  and  a  writ 
of  error  can  not  be  brought  merely  upon  his  refusal  to  institute  the 
process. 

By  the  Court :  We  are  clearly  and  unanimously  of  opinion,  that 
a  mandamus  ought  not  to  issue.  It  is  evident,  that  the  district  judge 
was  acting  in  a  judicial  capacity,  when  he  determined,  that  the  evi- 
dence was  not  sufficient  to  authorize  his  issuing  a  warrant  for  appre- 
hending Captain  Barre:  and  (whatever  might  be  the  difference  of 
sentiment  entertained  by  this  court)  we  have  no  power  to  compel  a 
judge  to  decide  according  to  the  dictates  of  any  judgment,  but  his 
own.  It  is  (54)  imnecessary,  however,  to  declare,  or  to  form,  at  this 
time,  any  conclusive  opinion,  on  the  question  which  has  been  so  much 
agitated,  respecting  the  evidence  required  by  the  9th  article  of  the 
consular  convention. 

The  rule  discharged. 

Cited— 5  Pet.  207;  14  Pet.  599;  14  Wall.  166;  Id.  603;  11  Otto  700;  3  Mc- 
Arthur  333. 

UNITED  STATES  v.  KELLY,  (1901,  U.  S.) 

108   Fed.   Eep.   538. 
Bellinger,  District  Court. 

Prosecution   for  the   obstructing   and   opposing   officers  of  the 

407 


CONSULAR  CASES 

United  States  in  the  execution  of  process.    On  demurrer  to  informa- 
tion, 

John  11.  Hall  for  the  United  States. 

Henrj-  McGinn  and  C.  W.  Fulton,  for  defendants. 

BELLINGER,  District  Judge.  This  is  an  information  for  vio- 
lation of  section  5398  of  the  revised  statutes.  The  information  charges 
the  defendants  with  having,  on  the  . . .  day  of  August,  1900,  at  the 
city  of  Astoria,  in  this  state,  knowingly  and  willfully  obstructed  and 
opposed  one  A.  Roberts  and  one  George  Maygers,  deputy  United  States 
marshals  for  the  districts  of  Oregon,  with  force  and  arms,  by  then  and 
there  forcibly  taking  from  the  custody  of  the  said  deputy  marshals 
one  Thomas  G.  Jefferies,  one  A.  Norbin,  one  N.  Johannson,  and  one 
Ole  Thomson,  who  had  theretofore,  to  wit,  on  the  13th  day  of  August, 
1900,  at  the  city  of  Portland,  within  the  district  of  Oregon,  on  a  hear- 
ing and  trial  then  and  there  had  before  Edward  N.  Deady,  United 
States  commissioner  within  said  district,  been  by  said  commissioner 
duly  adjudged  to  be  deserters  from  the  ship  Cedarbank,  a  foreign 
vessel,  sailing  under  the  flag  of  Great  Britain;  and  the  said  commis- 
sioner having  duly  committed  the  persons  named  to  the  custody  of 
the  United  States  marshal  for  the  district  of  Oregon,  to  be  by  him 
surrendered  and  restored  to  the  said  ship  Cedarbank,  under  the  direc- 
tion of  James  Laidlaw,  the  duly-accredited  consul  of  the  kingdom  of 
Great  Britain  and  Ireland  at  the  city  of  Portland,  within  the  state  of 
Oregon;  and  the  said  James  Laidlaw,  as  such  consul,  having,  on  the 
. . .  day  of  August,  1900,  directed  the  said  United  States  marshal  for 
the  district  of  Oregon,  in  writing,  to  restore  the  said  deserters  to  the 
said  British  ship  Cedarbank  by  delivering  them  to  the  master  of  said 
vessel,  on  board  thereof,  at  the  city  of  Astoria;  and  while  the  said 
Jefferies,  Norbin,  Johannson,  and  Thomson  were  still  in  the  lawful 
castody  of  the  said  United  States  (540)  marshals,  the  said  Kelly  and 
Linville,  on  the  . . .  day  of  August,  aforesaid,  did,  with  force  and 
arms,  take  said  Jefferies,  Norbin,  Johannson,  and  Thomson  from  the 
custody  of  said  United  States  marshal,  etc.  To  this  information  the 
defendants  demur. 

The  statute  under  which  this  information  is  brought  provides  that 
every  person  who  knowingly  and  willfully  obstructs  or  opposes  any 
officer  of  the  United  States  in  serving  or  attempting  to  serve  or  exe- 
cute any  mesne  process  or  warrant,  or  any  rule  or  order  of  any  court 
of  the  United  States,  or  any  other  legal  or  judicial  writ  or  process, 
shall  be  punished.  A  treaty  between  the  United  States  and  Great 
Britain,  entered  into  in  1892,  provides  that  the  British  consul  shall 
have  power  to  require  from  the  proper  authority  the  assistance  pro- 

408 


CONSULAR  CASES 

vided  by  law  for  the  apprehension,  recovery,  and  restoration  of  sea- 
men who  may  desert  from  any  ship  belonging  to  a  citizen  of  Great 
Britain.  Section  5280  of  the  revised  statutes,  in  force  at  the  time 
this  treaty  with  Great  Britain  was  entered  into,  provides,  that : 

"On  application  of  a  consul  or  vice-consul  of  any  foreign  government  having 
a  treaty  for  the  United  States  stipulating  for  the  restoration  of  seamen  deserting 
*  *  *  it  shall  be  the  duty  of  any  court,  judge,  commissioner  of  any  circuit 
court,  justice,  or  other  magistrate,  having  competent  power,  to  issue  warrants  to 
cause  such  person  to  be  arrested  for  examination.  If,  on  examination,  the  facts 
stated  are  found  to  be  true,  the  person  arrested  not  being  a  citizen  of  the  United 
States,  shall  be  delivered  up  to  the  consul  or  vice  consul,  to  be  sent  back  to  the 
dominions  of  any  such  government,  or,  on  the  request  and  at  the  expense  of  the 
consul  or  vice-consul,  shall  be  detained  until  the  consul  or  vice-consul  finds  an 
opportunity  to  send  him  back  to  the  dominions  of  any  such  government,"  etc. 

The  treaty  gives  to  the  British  consul  power  to  require  from  the 
proper  authorities  the  assistance  provided  by  law  for  the  apprehension 
and  restoration  of  deserting  seamen.  The  only  assistance  provided 
by  law  for  this  purpose  is  that  provided  for  by  section  5280,  above 
quoted.  By  that  section  the  proper  officer  has  authority  to  deliver 
deserting  seamen  up  to  the  consul,  to  be  sent  back  to  the  dominions 
of  the  government  to  which  they  belong.  In  this  case  it  is  alleged, 
in  effect,  that  the  commissioner  committed  the  deserting  seamen  to 
be  surrendered  and  restored  by  the  marshal  to  the  ship  Cedarbank, 
under  the  direction  of  the  British  consul,  and  that  the  consul  directed 
the  marshal  to  restore  said  .seamen  to  the  Cedarbank  by  delivering 
them  to  the  master  of  the  vessel,  on  board  thereof,  at  the  city  of 
Astoria,  and  that  while  in  the  execution  of  said  order,  the  defendants, 
Kelly  and  Linville,  forcibly  took  the  parties  named  from  the  mar- 
shal's custody.  The  commissioner  had  no  authority  to  direct  the  re- 
storation of  the  seamen  to  the  ship  Cedarbank.  The  statute  only 
permits  their  delivery  to  the  consul.  I  am  satisfied  that  the  com- 
missioner had  authority  to  order  the  delivery  of  the  deserting  seamen 
to  the  consul  on  board  the  Cedarbank  at  Astoria,  either  to  the  consul 
himself  or  to  some  one  authorized  to  act  for  him  in  that  behalf. 
Neither  the  time  when  nor  the  place  where  the  delivery  is  to  be  made 
is  specified,  and  I  take  it  that  it  might  have  been  made,  as  I  have  in- 
dicated, at  Astoria,  or  at  any  other  place  within  the  limit  of  the  power 
of  the  court  to  order  and  of  the  marshal  to  execute  where  such  delivery 
was  necessary  to  be  effective.  But,  from  what  appears  (541)  in  the 
information,  the  deputies  were  in  the  execution  of  an  order  from  James 
Laidlaw.  the  British  consul,  which  required  them  to  restore,  the  sea- 
men to  the  master  of  the  vessel, — a  thing  not  within  the  power  of  the 
commissioner  to  order.  At  the  time  of  the  act  charged  as  a  crime,  the 
deputies  were  acting,  not  in  pursuance  of  such  an  order  as  the  statute 

409 


CONSULAR  CASES 

provides  for,  but  under  the  direction  of  the  British  consul.  The  of- 
ficers, therefore,  were  obstructed,  not  in  the  performance  of  a  duty 
enjoined  by  law.  but  in  the  performance  of  an  act  directed  by  the 
British  consul.  The  information  does  not  state  facts  constituting  a 
crime,  and  the  demurrer  is  sustained. 

UNITED  STATES  v.  LUCINARIO,  (1906,  U.  S.— Spain) 

6  Philippine  Keports  325. 

WUlard,  Supreme  Court.  Philippine  Islands. 

(Syllabus)  A  foreign  consul  is  not  a  public  authority  as  defined  in  article 
419  of  the  penal  code,  but  is  included  within  the  term  dignidad  contained  in  the 
same  article. 

[In  this  ease  defendant  was  imprisoned  for  striking  the  Spanish 
consul. — Ed.] 

UNITED  STATES  v.  lUNT,  (]855,  U.  S.) 
1  Sprague  311;  Fed.  Cases  15,642. 
Sprague,  District  Court. 

(Extract)  It  is  proper  for  the  master  to  take  the  advice  of  the 
consul,  as  of  any  other  judicious  person,  but  his  opinion  is  only  ad- 
vice, and  the  responsibility  rests  with  the  master. 

UNITED  STATES  v.  MITCHELL,  (1886,  U.  S.) 
26  Fed.  Rep.  607. 
Coxe,  District  Court. 

[Payment  of  consul's  salary. 

Rifjht  to  recover  payment  made  to  vice-consul  for  consul's  sal- 
ary.— Ed.] 

UNITED  STATES  v.  MOSBY,  (1889,  U.  S.) 
133    U.    S.    27.-5. 

Blatchford,  Supreme  Court. 

[Case  concerning  the  consul's  right  to  recover  fees  claimed  to 
be  unofficial  and  paid  into  the  treasury. 

Determination  of  what  constitutes  an  official  fee,  which  may  not 
be  retained  by  consul. 

Fees  for  care  of  estate  allowed. — Ed.] 

UNITED  STATES  v.  MOTHERWELL,  (1900,  U.  S.— Russia) 
103  Fed.  Rep.  198. 
McPherson,  District  Court. 

[Decided  that  art.  9  of  the  treaty  of  1832  with  Russia  does  not 

410 


CONSULAR  CASES 

apply  and  that  the  prisoner  could  not  be  arrested  as  a  deserter  upon 
written  request  of  Russian  vice-consul  at  Philadelphia. — Ed.] 

UNITED  STATES  v.  ORTEGA,  (1826,  U.  S.) 

11  Wheat.  468. 

Washington,  Supreme  Court. 

Am  indictment  under  the  crimes  act  of  1790,  c.  36,  (IX.),  8.  37,  for  infract- 
ing the  law  of  nations  by  offering  violence  to  the  person  of  a  foreign  minister, 
is  not  a  case  ' '  affecting  ambassadors,  other  public  ministers  and  consuls, ' '  within 
the  2d  section  of  the  3d  article  of  the  constitution  of  the  United  States. 

The  circuit  courts  have  jurisdiction  of  such  an  offense  under  the  11th  sec- 
tion of  the  judiciary  act  of  1789,  c.  20. 

Quaere,  Whether  the  jurisdiction  of  the  supreme  court  is  not  only  original, 
but  exclusive  of  the  circuit  court,  in  ' '  cases  affecting  ambassadors,  other  public 
ministers  and  consuls,"  within  the  true  construction  of  the  2d  section  of  the 
3d  article  of  the  constitution. 

(468)  MR.  JUSTICE  WASHINGTON  delivered  the  opinion  of 
the  court: 

The  defendant,  Juan  Gualberto  de  Ortega,  was  indicted  in  the 
circuit  court  of  the  United  States  for  the  Eastern  District  of  Pennsyl- 
vania, for  infracting  the  law  of  nations,  by  offering  violence  to  the 
person  of  Hilario  de  Rivas  y  Salmon,  the  charge  d'affaires  of  His 
Catholic  Majesty  the  King  of  Spain  in  the  United  States,  contrary 
to  the  law  of  nations,  and  to  the  act  of  the  congress  of  the  United 
States  in  such  case  provided.  The  jury  having  found  a  verdict  of 
guilty,  the  defendant  moved  an  arrest  of  judgment,  and  assigned  for 
cause  "that  the  circuit  court  has  not  jurisdiction  of  the  matter  charged 
in  the  indictment,  inasmuch  as  it  is  a  case  affecting  an  ambassador  or 
other  public  minister."  The  opinions  of  the  judges  of  that  court 
upon  this  point  being  opposed,  the  cause  comes  before  this  court 
upon  a  certificate  of  such  disagreement. 

The  questions  to  which  the  point  certified  by  the  court  below  gives 
rise,  are,  first,  whether  this  is  a  case  affecting  an  ambassador  or  other 
public  minister,  within  the  meaning  of  the  second  section  of  the  third 
article  of  the  constitution  of  the  United  States.  If  it  be,  then  the 
next  question  would  be  Avhether  the  jurisdiction  of  the  supreme  court 
in  such  cases,  is  not  only  original,  but  exclusive  of  the  circuit  courts, 
under  the  true  construction  of  the  above  section  and  article. 

The  last  question  need  not  be  decided  in  the  present  case,  because 
the  court  is  clearly  of  (469)  opinion  that  this  is  not  a  case  affecting 
a  public  minister,  within  the  plain  meaning  of  the  constitution.  It 
is  that  of  a  public  prosecution,  instituted  and  conducted  by  and  in 
the  name  of  the  United  States,  for  the  purpose  of  vindicating  the  law 
of  nations,  and  that  of  the  United  States,  offended,  as  the  indictment 

411 


CONSULAR  CASES 

charges,  in  the  person  of  a  public  minister,  by  an  assault  committed 
on  him  by  a  private  individual.  It  is  a  case,  then,  which  affects  the 
United  States,  and  the  individual  whom  they  seek  to  punish ;  but  one 
in  which  the  minister  himself,  although  he  was  the  person  injured  by 
the  assault,  has  no  concern,  either  in  the  event  of  the  prosecution  or 
in  the  costs  attending  it. 

It  is  ordered  to  be  certified  to  the  circuit  court  for  the  eastern 
district  of  Pennsylvania,  that  that  court  has  jurisdiction  of  the  matter 
charged  in  the  indictment,  the  case  not  being  one  which  affects  an 
ambassador  or  other  public  minister. 

Certificate  accordingly.^ 

S.  C,  4  Wash.  C.  C.  531. 

Criticised— 1  Abb.  U.  S.  32. 

Cited— 13  Wall.  594,  595,  600;  3  Blatchf.  265;  4  Blatchf.  51; 
Taney,  5,  7 ;  1  Abb.  U.  S.  32 ;  4  Wash.  538. 

*  The  constitution  of  the  United  States  provides  (art.  3,  sec.  2)  that  "the 
judicial  power  shall  extend  to  all  cases  in  law  and  equity,  arising  under  this 
constitution,  the  laws  of  the  United  States,  and  treaties  made,  or  which  shall  be 
made,  under  their  authority;  to  all  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls;  to  all  cases  of  admiralty  and  maritime  jurisdiction;  to 
controversies  to  which  the  United  States  shall  be  a  party;  to  controversies  be- 
tween two  or  more  states,  between  a  state  and  citizens  of  another  state,  between 
citizens  of  different  states,  between  citizens  of  the  same  state  claiming  lands 
under  grants  of  different  (470)  states,  and  between  a  state,  or  the  citizens 
thereof,  and  foreign  states,  citizens  or  subjects."  And  that,  "in  all  cases  affect- 
ing ambassadors,  other  public  ministers,  and  consuls,  and  those  in  which  a  state 
shall  be  party,  the  supreme  court  shall  have  original  jurisdiction.  In  all  the 
other  cases  before  mentioned,  the  supreme  court  shall  have  appellate  jurisdiction, 
both  as  to  law  and  fact,  with  such  exceptions,  and  under  siicli  regulations,  as  the 
congress  shall  make. ' ' 

The  crimes  act  of  1790,  c.  .36  (IX),  s.  25,  enacts,  "That  if  any  vrrit  or  pro- 
cess shall  at  any  time  be  sued  forth  or  prosecuted  by  any  person  or  persons  in  any 
of  the  courts  of  the  United  States,  or  in  any  of  the  courts  of  a  particular  state, 
or  by  any  judge  or  justice  therein  respectively,  whereby  the  person  of  any  am- 
bassador, or  other  public  minister,  of  any  foreign  prince  or  state,  authorized  and 
received  as  such  by  the  president  of  the  United  States,  or  any  domestic  or  domestic 
Ber\ant  of  any  such  ambassador  or  other  public  minister,  may  be  arrested  or  im- 
prisoned, or  his  or  their  goods  or  chattels  be  distrained,  seized,  or  attached,  such 
writ  or  process  shall  be  deemed  and  adjudged  to  be  utterly  null  and  void,  to  all 
intents  and  purposes  whatsoever  (S.  26).  That  in  case  any  person  or  persons 
shall  sue  forth  or  prosecute  any  such  writ  or  process,  such  person  or  persons,  and 
all  attorneys  or  solicitors,  prosecuting  or  soliciting  in  such  case,  and  all  officers 
executing  any  such  writ  or  process,  being  thereof  convicted,  shall  be  deemed  vio- 
lators of  the  law  of  nations,  and  disturbers  of  the  public  repose,  and  imprisoned 
not  exceeding  three  years,  and  fined  at  the  discretion  of  the  court."  The  same 
section  also  contains  a  jiroviso,  excepting  from  the  operation  of  the  preceding 
sections,  any  citizen  or  inhabitant  of  the  United  States,  who  shall  have  contracted 
debts  before  entering  into  the  service  of  such  minister,  and  requiring  the  name  of 
such  Ber%'ant  to  be  previously  registered  in  the  office  of  the  secretary  of  state, 
etc.  The  27th  section  provides,  "that  if  any  person  shall  violate  any  safe  con- 
duct or  passport  duly  obtained,  and  issued  under  the  authority  of  the  United 
States,  or  shall  assault,  strike,  wound,  imprison,  or  in  any  manner  infract  the 
law  of  nations,  by  offering  violence  to  the  person  of  an  ambassador  or  other 
public  minister,  such  person  so  offending,  on  conviction,  shall  be  imprisoned  not 
exceeding  three  years,  and  fined  at  the  discretion  of  the  court. ' ' 

412 


CONSULAR  CASES 

The  judiciary  act  of  1789,  c.  20,  8.  9,  provides,  "That  the  (471)  district 
court  shall  have,  exclusively  of  the  courts  of  the  several  states,  cognizance  of  all 
crimes  and  offenses  that  shall  be  cognizable  under  the  authority  of  the  United 
States,  committed  within  their  respective  districts,  or  upon  the  high  seas,  where 
no  other  punishment  than  whipping  not  exceeding  thirty  stripes,  a  fine  not  ex- 
ceeding one  hundred  dollars,  or  a  term  of  imprisonment  not  exceeding  six 
months,  is  to  be  inflicted."  "And  shall  also  have  jurisdiction,  exclusively  of  the 
courts  of  the  several  states,  of  all  suits  against  consuls  or  vice-consuls,  except  for 
offenses  above  the  description  aforesaid." 

The  same  act  (s.  11)  provides,  that  the  circuit  courts  "shall  have  exclusive 
cognizance  of  all  crimes  and  offenses  cognizable  under  the  authority  of  the 
United  States,  except  where  this  act  otherwise  provides,  or  the  laws  of  the  United 
States  shall  otherwise  direct,  and  concurrent  jurisdiction  with  the  district  courts, 
of  the  crimes  and  offenses  cognizable  therein."  It  also  provides  (s.  13)  that  the 
supreme  court  "shall  have,  exclusively,  all  such  jurisdiction  of  suits  or  pro- 
ceedings against  ambassadors,  or  other  public  ministers,  or  their  domestics,  or 
domestic  servants,  as  a  court  of  law  can  have  or  exercise  consistently  with  the 
law  of  nations;  and  original,  but  not  exclusive  jurisdiction,  of  all  suits  brought 
by  ambassadors  or  other  public  ministers,  or  in  which  a  consul,  or  vice-consul,  shall 
be  a  party." 

The  question  whether  the  jurisdiction  of  the  supreme  court  in  "all  cases  af- 
fecting ambassadors,  other  public  ministers  and  consuls ' '  is  exclusive  as  well  as 
original,  under  the  constitution,  so  as  to  preclude  congress  from  vesting  in  any 
other  tribunal  jurisdiction  over  such  cases,  has  never  been  decided  in  terms  by 
this  court.  But  it  was  held,  as  early  as  the  year  1793,  in  the  circuit  court  for 
the  district  of  Pennsylvania,  by  Wilson  and  Peters,  J.  J.  (Iredell,  J.,  dissenting), 
that  the  jurisdiction  in  a  criminal  prosecution  against  a  foreign  consul,  who  was 
indicted  for  a  misdemeanor  at  common  law,  was  constitutionally  vested  in  that 
court,  under  the  11th  section  of  the  judiciary  act  of  1789,  c.  20.  The  United 
States  v.  Eavara,  2  Dall.  Rep.,  297.  It  has,  however,  been  expressly  determined 
by  this  court,  that  the  clause  of  the  constitution  giving  the  supreme  court  appellate 
jurisdiction  in  all  other  cases  than  those  in  which  original  jurisdiction  is  granted, 
does  not  exclude  the  court  from  exercising  appellate  jurisdiction  in  cases  "arising 
under  the  constitution,  laws,  and  treaties  of  the  union, ' '  (472)  and  in  ' '  cases  of 
admiralty  and  maritime  jurisdiction,"  although  an  ambassador,  other  public  min- 
ister or  consul,  may  be  a  party.  If,  for  example,  a  foreign  minister  is  sued  in 
a  state  court  by  an  individual,  and  that  court  should  take  jurisdiction,  and  give 
judgment  against  the  minister,  the  supreme  court  of  the  United  States  may  re- 
vise the  judgment  under  the  appellate  powers  given  to  it  by  the  25th  section  of 
the  judiciary  act  of  1789,  c.  20.  So,  where  the  inferior  courts  of  the  union  take 
cognizance,  as  courts  of  admiralty  and  maritime  jurisdiction,  of  suits  brought  by 
foreign  consuls  in  maritime  causes  in  which  their  fellow-citizens  are  interested, 
the  appellate  power  of  this  court  has  been  constantly  exercised.  (See  the  judg- 
ment of  this  court  in  the  case  of  Cohens  v.  Virginia,  ante.  Vol.  VI.,  pp.  396-401, 
in  which  the  previous  case  of  Marbury  v.  Madison  (1  Cranch's  Rep.,  174)  is  re- 
vised and  explained.)  But  where  the  jurisdiction  depends  merely  upon  the  char- 
acter of  the  consul,  and  not  upon  the  nature  of  the  case,  the  question  has  never 
been  determined  by  this  court,  whether  congress  could  invest  any  other  tribunal 
than  the  supreme  court,  with  the  original  jurisdiction. 

It  has  been  decided  by  the  supreme  court  of  Pennsylvania,  that  the  state 
courts  have  no  jurisdiction  of  any  suit  brought  against  a  foreign  consul  or  vice- 
consul.  Mannhardt  v.  Soderstrom,  1  Binn.  Rep.,  138.  There  seems  to  be  no  rea- 
son to  doubt  the  correctness  of  this  adjudication,  the  constitution  giving  to  the 
national  judiciary  cognizance  of  ' '  all  cases  affecting  consuls, ' '  and  congress  hav- 
ing, by  the  9th  section  of  the  judiciary  act  of  1789,  c.  20,  vested  the  district 
courts  of  the  union  with  jurisdiction  of  various  matters  both  of  a  criminal  and 
civil  nature,  in  some  of  which  their  jurisdiction  is  exclusive  of  the  state  courts, 
and,  in  others,  concurrent  with  them ;  and  towards  the  latter  part  of  the  section, 
the  district  courts  being  vested  with  jurisdiction  "exclusively  of  the  courts  of 
the  several  states,  of  all  suits  against  consuls  or  vice-consuls,  except  for  of- 
fenses above  the  descrij)tion  aforesaid. ' '  The  word  ' '  suits ' '  includes  those  both 
of  a  civil  and  criminal  nature ;  and  the  exception  of  ' '  offenses  above  the  descrip- 
tion aforesaid"  refers  to  a  description  In  the  first  part  of  the  section,  viz.,  of- 
fenses where  no  other  punishment  than  whipping  opt  exceeding  thirty  stripes,  t^ 

413 


CONSULAR  CASES 

fine  not  exceeding  one  hundred  dollars,  or  a  term  of  imprisonment  not  exceeding 
six  months,  is  to  be  inflicted. 

(473)  The  circuit  courts  of  the  union  have  jurisdiction  concurrently  with  the 
district  courts,  of  offenses  within  that  description,  in  cases  affecting  consuls;  and 
the  circuit  courts  have  exclusive  jurisdiction  of  offenses  above  that  description,  in 
cases  affecting  consuls.  It  has  also  been  determined  by  the  supreme  court  of 
I'ennsylvania,  that  this  last  jurisdiction  of  the  circuit  courts  is  not  only  exclusive 
of  the  district  courts,  but  of  the  state  courts.  Upon  this  ground,  an  indictment 
for  a  criminal  oft"ense  under  the  laws  of  Pennsylvania,  against  the  Russian  consul- 
general,  was  quashed  for  want  of  jurisdiction  by  that  court,  in  1816.  Common- 
wealth V.  Kosloff,  .'5  Serg.  &  Rawle,  545.  In  delivering  the  judgment  of  the  court 
in  that  case,  Mr.  Chief  Justice  Tilghman  also  e.xaniined  the  question,  as  to  the 
nature  and  extent  of  the  privileges  of  consuls  under  the  law  of  nations,  and  de- 
cided that  the  privilege  of  immunity  from  criminal  prosecutions  was  not  con- 
ferred on  them  by  that  law.  It  had  been  previously  determined  by  the  English 
court  of  K.  B.,  in  1814,  that  they  were  not  privileged  as  public  ministers  from 
arrest  in  civil  cases.  Vivian  v.  Beeker,  3  Maul.  &  Selw.,  284.  And  the  author- 
ities, cited  from  the  text-writers  on  the  law  of  nations  in  these  two  cases,  show 
that  consuls  are  in  no  respect  privileged  as  public  ministers. 

It  results  from  the  above  provisions  of  the  constitution,  the  acts  of  congress, 
and  the  judicial  expositions  which  have  been  given  to  them, 

1.  That  no  civil  suit  or  criminal  prosecution  can  be  commenced  against  a 
foreign  ambassador,  other  public  minister,  or  consul,  in  any  state  court. 

2.  That  such  ambassador,  public  minister,  or  consul  may,  at  his  election,  com- 
mence a  suit  in  a  state  court,  (in  other  respects  of  competent  jurisdiction)  against 
an  individual. 

3.  That  an  ambassador,  or  other  public  minister,  cannot  be  proceeded  against 
in  any  civil  case,  by  compulsory  process,  in  any  court  whatever. 

4.  That  a  consul  may  be  sued,  or  proceeded  against,  civilly  or  criminally,  in 
the  courts  of  the  union,  in  the  same  manner  as  a  private  individual. 

5.  That  in  civil  suits  against  a  consul,  and  in  criminal  prosecutions  against 
him,  within  the  limits  of  the  criminal  jurisdiction  of  the  district  courts,  the  dis- 
trict courts  have  jurisdiction  of  such  suits  or  prosecutions. 

(474^  6.  That  in  criminal  prosecutions  against  consuls,  for  offenses  above 
the  description  of  those  cognizable  in  the  district  courts,  the  circuit  courts  have 
exclusive  jurisdiction,  and  concurrent  jurisdiction  with  the  district  courts  in  the 
other  cases  cognizable  therein. 

7.  That  the  supreme  court  has  original  and  exclusive  jurisdiction  of  such 
suits  or  prosecutions  against  ambassadors,  and  other  public  ministers,  as  any 
court  of  justice  can  exercise  consistently  with  the  law  of  nations. 

8.  That  the  supreme  court  has  original,  but  not  exclusive,  jurisdiction  of  suits 
brought  by  ambassadors,  or  other  public  ministers,  or  in  which  a  consul  is  a  party. 

9.  That  the  supreme  court  has  appellate  jurisdiction  of  all  cases,  in  which  a 
minister  or  consul  is  a  party,  arising  in  the  state  courts,  and  involving  the  con- 
struction of  the  national  constitution,  or  the  validity  and  construction  of  the 
laws  and  treaties  of  the  union,  under  the  restrictions  mentioned  in  the  25th  sec- 
tion of  the  judiciary  act  of  1789,  c.  20. 

10.  That  the  supreme  court  has  appellate  jurisdiction  of  all  civil  suits  brought 
in  the  courts  of  the  union,  having  original  jurisdiction  of  the  suit,  where  a  min- 
ister or  consul  is  a  party,  and  the  matter  in  dispute  exceeds  the  sum  of  two 
thousand  dollars. 

In  criminal  cases  arising  in  the  courts  of  the  union,  no  writ  of  error,  or  other 
apf)el]ate  firocess,  to  remove  the  cause  to  the  supreme  court,  has  been  provided  by 
congress;  and  the  only  mode  in  which  such  cases  can  be  revised  in  this  court  is 
upon  a  certificate  where  the  opinions  of  the  judges  of  the  circuit  court  are  op- 
posed. United  States  v.  La  Vengeance,  3  Dali.  Rep.  297;  United  States  v.  More, 
3  Cranch's  Rpp.,  159;  Ex  parte  Kearney,  ante,  Vol.  VII.,  p.  42.  Consequently, 
a  criminal  case  affecting  a  consul,  can  only  be  revised  in  this  court  upon  a  divi- 
sion of  opinions  of  the  judpes  of  the  court  below,  certified  under  the  6th  section 
of  the  judiciary  aft  of  the  29th  of  April,  1802,  c.  291.  (XXXI) 

The  question  as  to  what  is  the  law  by  which  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls,  are  to  be  rleterniined  in  tlio  courts  of  the  union,  in 
the  absence  of  any  legislative  firovinions  by  congress  a7)plicable  to  the  particular 
case,  would  lead  into  too  wide  a  field  of  discussion  to  be  embraced  by  the  present 

4U 


CONSULAR  CASES 

UNITED  STATES  v.  OWEN,  (1891,  U.  S.) 
47  Fed.  Rep.  797. 
Wheeler,  District  Court. 

[Consul  not  liable  for  money  paid,  under  the  direction  of  the 
state  department,  to  a  clerk  appointed  by  the  president. 

Consul  entitled  to  be  credited  at  any  time  before  final  settlement, 
with  moneys  belonging  to  himself  but  paid  over  under  the  impres- 
sion that  they  were  fees. — Ed.] 

UNITED  STATES  v.  RAVARA,  (1793,  U.  S.— Italy) 

2  Ball.  297. 

Wilson,  Circuit  Court. 

The  defendant,  a  consul  from  Genoa,  was  indicted  for  a  misde- 
meanor, in  sending  anonymous  and  threatening  letters  to  j\Ir.  Ham- 
mond, the  British  minister,  ]\Ir.  Holland,  a  citizen  of  Philadelphia,  and 
several  other  persons,  with  a  vieM'  to  extort  money. 

Before  the  defendant  pleaded,  his  counsel  (Heatly,  Lewis,  and 
Dallas)  moved  to  quash  the  indictment,  contending  that  to  the  su- 
preme court  of  the  United  States,  belonged  the  exclusive  cognizance  of 

note.  It  is  obvious,  that  the  law  of  nation  would,  in  some  (457)  instances,  form 
the  rule  of  decision ;  in  others,  such  as  civil  causes  arising  out  of  contract,  and 
questions  of  property,  the  laws  of  the  several  states  would  form  the  rule;  but  in 
what  manner  the  jurisdiction  of  the  national  courts  is  to  be  exercised  in  prose- 
cutions against  consuls  for  offenses  not  declared  penal  by  any  act  of  congress,  is 
a  subject  on  which  a  great  contrariety  of  opinions  has  prevailed.  In  its  more  gen- 
eral application,  this  has  been  stated  as  a  question,  whether  the  United  States, 
as  a  national  government,  have  any  common  law,  or,  in  other  words,  whether  the 
courts  of  the  United  States  have  any  common  law  jurisdiction.  In  a  late  essay 
upon  the  nature  and  extent  of  the  jurisdiction  of  the  courts  of  the  United  States, 
Mr.  Duponceau  has  proposed  a  very  elegant  and  ingenious  solution  of  this  prob- 
lem, by  assuming  a  distinction  between  the  common  law  as  a  source  of  power,  and 
as  a  means  for  its  exercise.  From  the  common  law,  considered  in  the  first  point 
of  view,  he  contends  that  in  this  country  no  jurisdiction  can  arise;  while  in  the 
second,  every  lawful  jurisdiction  may  be  exercised  through  its  instrumentality, 
and  by  means  of  its  proper  application.  He  denies  its  capacity  to  confer  any 
powers  on  the  courts  of  the  union  which  they  do  not  possess  by  the  written  code 
of  the  national  government;  but  he  insists  that,  as  a  system  of  jurisprudence,  it 
is  the  national  law  of  the  union,  so  far  as  it  has  not  been  altered  by  the  con- 
stitution, or  by  acts  of  congress.  Thus,  in  the  ease  of  consuls,  it  is  the  constitution 
which  gives  the  jurisdiction  in  personam,  but  it  is  the  local  law  of  the  state 
(whether  common  or  statute),  which  must  furnish  the  rule  of  decision  in  the  ab- 
sence of  any  regulation  by  congress  applicable  to  cases  affecting  them.  And,  in 
this  view,  the  learned  author  insists  that  the  34th  section  of  the  judiciary  act  of 
1789,  c.  20,  making  the  laws  of  the  several  states,  except  where  the  constitution, 
treaties  or  statutes  of  the  United  States,  otherwise  provide,  rules  of  decision  in 
trials  at  common  law  in  the  courts  of  the  union,  in  cases  where  they  apply,  in- 
cludes both  criminal  and  civil  cases.  But  the  question,  for  all  practical  purposes, 
is  settled  in  this  court  according  to  the  authority  of  the  case  in  The  United 
States  V.  Hudson  and  Goodwin  (7  Cranch's  Rep.,  152),  in  which  it  was  determined, 
that  the  courts  of  the  union  cannot  exercise  a  common  law  jurisdiction;  al- 
though it  is  still  considered  as  open  for  discussion,  whenever  a  case  shall  arise 
rendering  it  necessary  to  reconsider  that  decision.  See  The  United  States  v. 
Coolidge,  ante,  Vol.  I.,  p.  415, 

415 


CONSULAR  CASES 

the  case,  ou  account  of  the  defendant's  official  character.  By  the  2d 
section  of  the  third  article  of  the  constitution,  it  is  expressly  declared, 
that,  "in  all  cases  affecting  ambassadors,  other  public  ministers,  and 
consuls,  and  those  in  which  a  state  shall  be  a  party,  the  supreme  court 
shall  have  original  jurisdiction."  By  declaring  in  the  sequel  of  the 
same  section  ' '  that  in  all  the  other  cases  before-mentioned  the  supreme 
court  shall  have  appellate  jurisdiction,"  the  word  original  is  ren- 
dered tantamount  to  exclusive,  in  the  specified  cases.  But  surely  an 
original  jurisdiction  established  by  the  constitution  in  the  supreme 
court,  can  not  be  exclusively  vested  by  law  in  any  inferior  courts. 
The  13th  section  of  the  judicial  act  provides,  that  "the  supreme 
court  shall  have  exclusively  all  such  jurisdiction  of  suits  or  (298)  pro- 
ceedings against  ambassadors,  or  other  public  ministers,  or  their 
domestics,  or  domestic  servants,  as  a  court  of  law  can  have  or  exercise 
consistently  with  the  law  of  nations;  and  original,  but  not  exclusive, 
jurisdiction  of  all  suits  brought  by  ambassadors,  or  other  public  min- 
isters, or  in  which  a  consul  or  vice-consul  shall  be  a  party."  This 
provision  obviously  respects  civil  suits;  but  the  11th  section  declares, 
that  "the  circuit  court  shall  have  exclusive  cognizance  of  all  crimes 
and  offences  cognizable  under  the  authority  of  the  United  States,  ex- 
cept where  this  act  otherwise  provides,  or  the  laws  of  the  United  States 
shall  otherwise  direct,  and  concurrent  jurisdiction  with  the  district 
courts  of  the  crimes  and  offences  cognizable  therein."  This  is  a  crim- 
inal prosecution,  not  otherwise  provided  for;  and  if  the  jurisdiction 
can  be  exclusively  vested  in  the  circuit  court,  it  destroys  the  original 
jurisdiction  given  by  the  constitution  to  the  supreme  court.  In  jus- 
tice to  the  legislature,  therefore,  such  a  construction  must  be  rejected ; 
and  the  cognizance  of  the  case  be  left,  upon  a  constitutional  footing, 
exclusively  to  the  supreme  court.  The  argument  is  the  more  cogent 
from  a  consideration  of  the  respect  which  is  due  to  consuls,  by  the  law 
of  nations.     Vatt.  b.  2.  c.  2.  s.  34. 

Rawle,  the  district  attorney,  stated  in  reply,  that  there  was  a 
material  distinction  between  public  ministers,  and  consuls;  the  form- 
er being  entitled  to  high  diplomatic  privileges,  which  the  latter,  by 
the  law  of  nations,  had  no  right  to  claim ;  and  he  contended,  that  the 
supreme  court  has  original,  but  not  exclusive,  jurisdiction  of  of- 
fences committed  by  consuls:  That  the  district  court  had  jurisdiction 
(exclusively  of  the  state  courts)  of  all  offences  committed  by  consuls, 
except  where  the  punishment  to  be  inflicted  exceeded  thirty  stripes, 
a  fine  of  one  hundred  dollars,  or  the  term  of  five  months  imprison- 
ment: And  that  the  circuit  court  had,  in  this  respect,  a  concurrent 
jurisdiction  with  the  .supreme  court  as  well  as  the  district  court.  If 
indeed  this  is  a  crime  "cognizable  under  the  authority  of  the  United 

416 


CONSULAR  CASES 

States,"  it  is  within  the  express  delegation  of  jurisdiction  to  the  cir- 
cuit court. 

WILSON,  Justice.  I  am  of  opinion,  that  although  the  constitu- 
tion vests  in  the  supreme  court  an  original  jurisdiction,  in  cases  like 
the  present,  it  does  not  preclude  the  legislature  from  exercising  the 
power  of  vesting  a  concurrent  jurisdiction,  in  such  inferior  courts, 
as  might  by  law  be  established :  And  as  the  legislature  has  expressly 
declared,  that  the  circuit  court  shall  have  ''exclusive  cognizance  ofi 
all  crimes  and  offences,  cognizable  under  the  authority  of  the  United 
States,  I  think  the  indictment  ought  to  be  sustained. 

IREDELL,  Justice.  I  do  not  concur  in  this  opinion,  because  it 
appears  to  me,  that  for  obvious  reasons  of  public  policy,  the  (299) 
constitution  intended  to  vest  an  exclusive  jurisdiction  in  the  supreme 
court,  upon  all  questions  relating  to  the  public  agents  of  foreign  na- 
tions. Besides,  the  context  of  the  judiciary  article  of  the  constitution 
seems  fairly  to  justify  the  interpretation,  that  the  word  original, 
means  exclusive,  jurisdiction. 

PETERS,  Justice.  As  I  agree  in  the  opinion  expressed  by  Judge 
Wilson,  for  the  reasons  which  he  has  assigned,  it  is  unnecessary  to 
enter  into  any  detail. 

The  motion  for  quashing  the  indictment  was  accordingly  reject- 
ed, and  the  defendant  pleaded  not  guilty;  but  his  trial  was  post- 
poned, by  consent,  'till  the  next  term-^ 

^  The  defendant  was  tried  in  April  session,  1794,  before  Jay,  chief  justice, 
and  Peters,  justice;  and  was  defended,  by  the  same  advocates,  on  the  following 
points:  1st.  That  the  matter  charged  in  the  indictment  was  not  a  crime  by  the 
common  law,  nor  is  it  made  such  by  any  positive  law  of  the  United  States.  In 
England  it  was  once  treason ;  it  is  now  felony ;  but  in  both  instances  it  was  the 
effect  of  positive  law.  It  can  only,  therefore,  be  considered  as  a  bare  menace  of 
bodily  hurt;  and,  without  a  consequent  inconvenience,  it  is  no  injury  public  or 
private.  4  Bl.  C.  5.  8  Hen.  6.  c.  6.  9.  Geo.  1.  c.  22.  4  Bl.  C.  144.  3.  Bl.  120. 
2d.  That  considering  the  official  character  of  the  defendant,  such  a  proceeding 
ought  not  to  be  sustained,  nor  such  a  punishment  inflicted.  The  law  of  nations 
is  a  part  of  the  law  of  the  United  States;  and  the  law  of  nations  seem  to  require, 
that  a  consul  should  be  independent  of  the  ordinary  criminal  justice  of  the  place 
where  he  resides.  Vatt.  b.  2.  c.  2.  s.  34.  3d.  But,  that,  exclusive  of  the  legal  ex- 
ceptions, the  prosecution  had  not  been  maintained  in  point  of  evidence;  for,  it 
was  all  circumstantial  and  presumptive,  and  that  too,  in  so  slight  a  degree,  as 
ought  not  to  weigh  with  a  jury  on  so  important  an  issue.  2  Hal.  H.  P.  C.  289. 
4  Smol.  Hist.  Eng.  p.  382.  in  note. 

Rawle,  in  reply,  insisted  that  the  offence  was  indictable  at  common  law;  that 
the  consular  character  of  the  defendant  gave  jurisdiction  to  the  circuit  court, 
and  did  not  entitle  him  to  an  exemption  from  prosecution  agreeably  to  the  law 
of  nations;  and  that  the  proof  was  as  strong  as  the  nature  of  the  case  allowed, 
or  the  rules  of  evidence  required.  In  support  of  his  arguments  he  cited  the  fol- 
lowing authorities.  4  Bl.  Com.  142.  144.  1  Lev.  146.  1  Keb.  809.  4  Bl.  C.  180. 
Stra.  193.  4  Bl.  C.  242.  Crown  Circ.  376.  Fost.  128.  Leach  204.  1  Dall.  Eep. 
338.     1  Sid.  168.    Comb.  304.    Leach  39.    Ld.  Ray.  1461.     1  Dall.  Rep.  45. 

The  court  were  of  opinion  in  the  charge,  that  the  offence  was  indictable,  and 

417 


CONSULAR  CASES 

TJNITED  STATES  v.  TRTJMBULL,  et  al.,  (1891,  U.  S.— Chile) 

48  Fed.  Kep.  94. 

Koss,  District  Court. 

[Although  consul's  government  overthrown  and  new  government 
recognized  by  receiving  state,  he  must  be  granted  same  immunities  as 
long  as  his  exequatur  is  not  revoked. 

Consul,  benefitting  from  article  of  French  treaty,  can  not  be 
compelled  to  appear  as  witness  for  prosecution. — Ed.] 

VALARINO  V.  THOMPSON,  (1853,  U.  S.— Ecuador) 

7  N.  Y.  576. 

Ruggles,  Court  of  Appeals,  New  York. 

Foreign  Consul. — Exemption  feom  Suit  in  State  Courts 

A  foreign  consul  residing  in  the  United  States  is  not  liable  to  suit  in  the 
state  courts,  though  impleaded  with  a  citizen  upon  a  joint  contract;  nor  can  his 
exemption  be  waived  by  appearance,  not  being  a  personal  privilege,  but  one  which 
exists  by  virtue  of  the  national  judiciary  act  of  1789.  Such  exemption  may  be 
alleged  as  an  error  of  fact  after  judgment,  and  while  the  case  is  in  an  appellate 
court. 

Action  of  assumpsit  in  the  superior  court  of  the  city  of  New 
York,  against  the  defendant  and  one  Mason,  commission  merchants, 
doing  business  in  the  city  of  New  York,  under  the  firm  name  of  Mason 
and  Thompson.  Process  was  served  on  the  defendant  alone,  who  inter- 
posed a  defense,  but  judgment  was  taken  for  the  plaintiff. 

The  defendant  thereupon  removed  the  cause  to  the  supreme 
court  on  writ  of  error  assigning  an  error  in  fact  that  prior  to  and 
at  the  time  the  action  was  commenced,  and  then,  he  was  consul  of  the 
republic  of  Ecuador  for  the  port  of  New  York.  The  plaintiff  alleged 
in  reply  that  the  defendant  had  voluntarily  su])mitted  himself  to  the 
jurisdiction  of  the  superior  court,  and  that  the  cause  of  action  was 
one  in  which  he  was  jointly  interested  with  his  copartner  Mason. 

The  supreme  court  reversed  the  judgment  of  the  superior  court, 
upon  which  the  plaintiff  brought  this  appeal. 

(577)  J.  Larocque,  for  appellant. 
C.  0 'Conor,  for  respondent. 

RUGGLES.  Ch.  J.     The  power  of  the  supreme  court  to  reverse 


that  the  defendant  was  not  privileged  from  prosecution,  in  virtue  of  his  consular 
appointment. 

The  jury,  after  a  short  consultation,  pronounced  the  defendant,  guilty;  but 
he  was  afterwards  pardoned,  on  condition  (as  I  have  heard)  that  he  surrendered 
his  commission  and  exequatur. 

As  to  the  question  of  jurisdiction,  see  The  United  States  v.  Warral,  post. 

418 


CONSULAR  CASES 

the  judgment  rendered  in  the  superior  court  of  the  city  of  New  York 
for  error  in  fact  was  not  disputed  on  the  argument  of  this  case.  Nor 
was  it  denied  that  the  United  States  have  exclusive  jurisdiction  in 
suits  against  consuls  of  foreign  states  residing  here.  But  it  was  in- 
sisted that  the  defendant's  exemption  as  a  consul  from  liability  to  be 
sued  in  the  state  court  was  his  personal  privilege ;  and  that  he  waived 
it  by  pleading  to  the  merits  and  going  to  trial  without  raising  the  ob- 
jection in  the  court  below.  It  was  also  further  contended  that  the 
ITnited  States  courts  have  no  jurisdiction  in  a  case  like  the  present, 
(578)  where  the  consul  was  sued  together  with  another  person  on  a 
joint  contract,  and,  therefore,  that  the  suit  was  rightly  brought  in  the 
state  court. 

The  points  thus  raised  present  questions  for  the  consideration 
of  this  court,  which,  if  decided  against  the  defendant,  are  conclusive 
in  favor  of  affirming  the  judgment  of  the  supreme  court,  and  render 
the  examination  of  the  other  questions  raised  on  the  argument  un- 
necessary. 

The  exemption  of  an  ambassador  or  other  diplomatic  minister 
from  liability  to  be  sued  or  prosecuted  in  the  courts  of  the  country  to 
which  he  is  accredited  is  the  privilege  of  his  sovereign  or  govern- 
ment. It  is  accorded  to  the  office  and  not  to  the  individual.  (Bar- 
buit's  Case,  Talbot's  Cases,  381.)  It  is  founded  on  the  law  of  na- 
tions, and  does  not  depend  on  the  law  of  the  country  in  which  the 
fimctions  of  the  minister  are  to  be  exercised.  The  extent  of  the  im- 
munities to  which  a  consul  is  entitled  under  the  law  of  nations  does  not 
appear  to  be  very  clearly  defined  by  writers  on  public  law.  Accord- 
ing to  Vattel,  a  consul  is  not  entitled  to  the  privileges  of  a  public 
minister;  yet  bearing  his  sovereign's  commission,  and  being  in  this 
quality  received  by  the  government  of  the  country  in  which  he  re- 
sides, he  is  in  a  certain  degree  entitled  to  the  protection  of  the  law  of 
nations.  The  sovereign,  by  the  very  act  of  receiving  him,  tacitly  en- 
gages to  allow  him  all  the  liberty  and  safety  necessary  to  the  proper 
discharge  of  his  functions,  without  which  the  admission  would  be  nuga- 
tory and  delusive.  (Vattel,  book  2,  chap.  2.  sect.  34.)  The  same  writer 
further  says  that  the  functions  of  a  consul  seem  to  require  that  he 
should  be  independent  of  the  ordinary  criminal  justice  of  the  place 
where  he  resides,  so  as  not  to  be  molested  or  imprisoned  unless  he  him- 
self violate  the  law  of  nations  by  some  enormous  crime;  and  that  in 
such  case  the  respect  due  to  his  master  requires  that  he  should  be  sent 
home  to  be  punished ;  and  that  such  is  the  mode  pursued  by  states  that 
are  inclined  to  preserve  a  good  understanding  with  each  other. 

Other  writers,  however,  regard  a  consul  as  amenable  like  a  private 
individual  to  the  civil  and  criminal  law  of  the  country    (579)    to 

419 


CONSULAR  CASES 

which  he  is  accredited.  (2  B^o^vIl's  Civ.  and  Adm.  Law,  506 ;  "Wicque- 
fort  on  "The  Ambassador,"  book  1,  sect.  5.)  In  1793  the  Genoese 
consul  was  indicted  in  the  circuit  court  of  the  United  States  for  the 
district  of  Pennsylvania  for  a  misdemeanor,  and  tried  and  convicted. 
In  this  case  the  privilege  was  disallowed  or  disregarded,  but  the  con- 
sul was  afterwards  pardoned  upon  condition  that  he  surrendered  his 
commission  and  exequator.     (United  States  v.  Ravara,  2  Dallas,  297.) 

The  privileges  of  a  consul,  however,  do  not  always  depend  on 
the  law  of  nations.  They  are  frequently  regulated  by  treaty.  And 
by  the  treaty  between  the  United  States  and  the  republic  of  Ecuador 
(Art.  29),  the  consuls  of  that  republic  are  entitled  to  all  the  rights, 
prerogatives  and  immunities  of  the  consuls  of  the  most  favored  na- 
tions. 

The  defendant,  therefore,  in  his  consular  office,  must  be  regarded 
as  entitled  to  some  rights,  prerogatives  and  immunities  under  this 
treaty,  if  not  under  the  law  of  nations,  and  they  are  of  the  same  na- 
ture and  character  as  those  to  which  a  public  minister  is  entitled. 

An  ambassador  cannot  renounce  a  privilege  accorded  to  his  of- 
fice by  the  law  of  nations,  because  it  is  the  privilege  of  his  government, 
and  not  personally  his  own.  (Barbuit's  Case,  Talbot's  Cases,  281.) 
The  immunities  of  these  public  agents  are  secured  to  them  by  public 
law,  in  order  that  they  may  not  be  embarrassed  in  the  exercise  of  their 
functions  by  the  action  of  the  government  of  the  country  where  they 
reside,  or  of  any  individual  within  it.  The  privileges  of  the  consular 
office,  whether  derived  from  the  law  of  nations  or  from  treaty,  stand 
on  the  same  footing,  and  for  the  same  reason  they  cannot  be  renounced 
by  the  officer. 

It  belongs  to  the  United  States  courts  and  not  to  the  courts  of 
this  state,  to  determine  what  privileges  and  immunities  a  foreign  min- 
ister or  consul  is  entitled  to. 

The  states,  by  adopting  the  federal  constitution,  transferred  to  the 
general  government  the  right  to  exercise  a  portion  of  the  judicial 
power  which  had  previously  belonged  to  the  several  states.  The  in- 
tention was  to  make  the  judicial  authority  of  the  (580)  federal  govern- 
ment co-extensive  with  its  political  powers.  Its  judicial  powers,  there- 
fore, embrace  "all  cases  in  law  and  equity  arising  under  the  consti- 
tution, the  laws  of  the  United  States,  and  all  treaties  made,  or  which 
shall  be  made,  under  their  authority."  (Const.,  art.  3,  sect.  2.)  The 
federal  government  has  charge  exclusively  of  the  foreign  relations  of 
the  country,  of  the  regulation  of  commerce  with  foreign  nations,  and 
of  all  political  intercourse  between  this  country  and  others.  The  fed- 
eral power  of  the  United  States  is,  therefore,  made  to  extend  "to  all 
cases   affecting   ambassadors,   other   public   ministers   and   consuls." 

420 


CONSULAR  CASES 

(Art.  3,  sect.  2.)  The  judiciary  act  of  1789  (2  Bioren  &  Duane's 
Laws,  56),  establishes  district  courts  and  defines  their  authority  (sec- 
tions 2,  3,  9).  The  latter  section  gives  them  jurisdiction  ''exclu- 
sively of  the  courts  of  the  several  states  of  all  suits  against  consuls 
and  vice  consuls,"  with  an  exception  not  affecting  the  present  case. 

The  defendant,  therefore,  is  exempted,  as  a  consul,  from  liability 
to  be  sued  in  the  state  courts.  But  this  exemption  is  neither  his  per- 
sonal privilege  nor  the  privilege  of  the  state  by  which  he  was  com- 
missioned .  It  is  not  founded  on  the  law  of  nations,  or  on  any 
treaty  between  his  government  and  that  of  this  country.  If  it  can  be 
regarded  as  a  privilege  belonging  to  him  or  to  his  office,  it  is  only 
because  it  secures  to  him  the  protection  of  the  national  government, 
which  is  responsible  to  his  own  for  any  violation  of  his  rights  derived 
under  the  law  of  nations  or  from  treaty.  But  it  does  not  exempt  him 
from  liability  to  respond  to  his  creditors,  or  to  answer  for  his  mis- 
conduct. Nobody  denies  the  liability  of  a  consul  to  be  sued  in  a  civil 
action.  The  act  of  congress  concedes  it,  and  provides  for  it.  It 
prescribes  the  tribunal  in  which  a  consul  in  this  country  is  to  be 
called  on  to  answer,  and  excludes  the  state  courts  from  jurisdiction. 
The  object  of  this  exclusion  was  to  keep  within  the  control  of  the 
federal  government,  and  subject  to  the  authority  of  its  courts,  all 
cases  and  controversies  which  might  in  any  degree  affect  our  foreign 
relations.  The  United  States  government  has  an  interest  in  main- 
taining this  exclusive  jurisdiction,  for  the  purpose  of  preventing  it 
from  being  involved  in  controversies  with  foreign  powers  without 
its  consent,  and  for  acts  not  its  own.  But  this  is  matter  of  internal 
regulation  between  the  general  government  and  the  several  states, 
over  which  foreign  governments  have  no  control.  The  exemption  of  a 
consul  from  liability  to  be  sued  in  a  state  court,  if  it  can  be  called  a 
privilege  ,  is  not  the  privilege  of  the  consul,  or  of  his  sovereign,  but 
of  the  United  States  government;  and,  therefore,  it  cannot  be  re- 
nounced by  the  consul.  In  Mannhardt  v.  Soderstrom  (1  Binney, 
138),  the  defendant,  who  was  the  Swedish  consul,  pleaded  to  the 
merits  of  the  case,  and  afterwards  moved  to  quash  the  proceedings 
on  the  ground  that  the  state  court  had  no  jurisdiction.  The  motion 
was  granted,  Tilghman,  Ch.  J.,  remarking  that  "the  court  will  put 
a  stop  to  the  proceedings  in  any  stage  on  its  being  shown  that  they 
have  no  jurisdiction." 

But  the  case  of  Davis  v.  Packard  (7  Pet.  276;  8  id.  314),  is  a 
direct  and  conclusive  adjudication  upon  the  point  we  are  noM^  con- 
sidering. That  case  came  before  the  supreme  court  of  the  United 
States  on  a  writ  of  error  to  the  court  of  last  resort  in  this  state. 
Davis,  the  defendant  in  that  suit,  was  sued  in  the  supreme  court 

421 


CONSULAR  CASES 

of  this  state,  on  a  recognizance  of  bail  entered  into  by  him  in  a  suit 
of  the  plaintiff's  against  T.  Hill.  He  pleaded  several  pleas  to  the 
merits  of  the  case  on  which  issues  were  joined,  and  on  which  a  verdict 
was  found  and  judgment  rendered  against  him.  He  removed  the  re- 
cord by  a  writ  of  error  to  the  court  for  the  correction  of  errors,  and 
then  assigned  for  error  in  fact  that  he  was  consul  general  of  the  king 
of  Saxony.  This  objection  had  not  been  raised  by  plea  or  otherwise 
in  the  court  in  which  he  was  sued.  The  defendants  in  error  pleaded 
in  nuUo  est  erratum.  The  judgment  of  the  supreme  court  was  af- 
firmed on  the  ground,  among  others,  that  after  having  appeared  and 
pleaded  to  the  merits,  he  could  not  avssign  as  error  in  fact  that  he  was 
such  consul,  and  thereupon  allege  that  the  supreme  court  had  no 
jurisdiction.  The  case  went  to  the  supreme  court  of  the  United 
States  on  a  vrrit  of  error.  The  plaintiffs  there  raised  the  objection 
that  Davis,  the  consul,  should  have  pleaded  to  the  jurisdiction  of  the 
state  court  (582)  in  the  original  suit,  but  the  judgment  was  neverthe- 
less reversed. 

The  only  remaining  point  to  be  considered  is  whether  the  state 
courts  have  jurisdiction  in  a  suit  against  a  consul,  where  he  is  sued 
together  with  another  person  on  a  joint  contract.  The  plaintiff 
contends  that  they  have  ,  on  the  ground  that  the  United  States  courts 
have  not  jurisdiction  in  such  a  case.  But  this  we  think  is  a  mistake. 
The  constitution  extends  the  jurisdiction  of  the  United  States  courts 
to  all  cases  "affecting  consuls,"  and  the  judiciary  act  makes  it  ex- 
clusive of  the  state  courts  "in  all  suits  against  consuls."  This  suit 
being  against  a  consul  is  within  the  terms  both  of  the  constitution  and 
of  the  act,  although  he  sued  jointly  with  another.  "Whether  the  9th 
section  of  the  act  be  construed  strictly  according  to  its  letter,  or  freely 
in  regard  to  its  object  and  intention,  the  result  must  be  the  same. 
Instead  of  excluding  from  the  jurisdiction  of  the  di.strict  court  a  case 
in  whir-b  the  consul  and  another  are  necessarily  co-defendants,  it 
brings  the  eo-dofendant  within  that  jurisdiction  by  unavoidable  im- 
plication. The  intent  of  the  constitution  and  of  the  statute  cannot  be 
effectually  carried  out  upon  any  other  construction.  A  consul  can- 
not renounce  the  exemption  from  being  sued  in  a  state  court,  because 
it  is  not  his  personal  privilege,  but  the  right  and  privilege  of  the 
United  States  that  he  should  be  sued  in  the  federal  courts;  and  for 
the  like  reason  he  cannot  avoid  the  exclusive  jurisdiction  of  those 
courts  by  joining  in  a  contract  with  another  person,  and  thus  sub- 
jecting him.self  to  a  joint  suit.  It  has  in  some  instances  been  pro- 
vided by  treaty,  that  when  a  consul  engages  in  commerce,  he  shall  be 
subject  to  the  same  laws  to  which  private  individuals  are  subject 
in  the  same  place;  as  in  the  treaty  between  the  United  States  and  the 

422 


CONSULAR  CASES 

Two  Sicilies.  But  there  are  exceptions  to  the  general  law  of  nations. 
The  case  of  Strawbridge  v.  Curtiss  (3  Cranch,  267,)  decided  under 
the  11th  section  of  the  judiciary  act  of  1789,  is  inapplicable  to  the 
present  case,  by  analogy  or  otherwise.  The  provision  in  regard  to 
suits  against  consuls  is  evidently  founded  on  reasons  of  public  policy 
which  do  not  exist  in  cases  between  citizens  of  different  (583)  states, 
and  the  jurisdiction  of  the  United  States  courts  is  in  the  one  case 
exclusive  and  in  the  other  concurrent  with  that  of  the  state  courts. 
This  case  has  moreover  been  virtually  overruled  in  reference  to  suits 
between  citizens  of  different  states.     (How.  255.) 

Although  we  cannot  look  with  favor  on  the  conduct  of  the  de- 
fendant in  taking  his  chance  of  success  in  the  supreme  court  without 
raising  objection  to  its  jurisdiction,  and  afterwards  reversing  the 
judgment  on  that  ground,  we  think  the  judgment  of  the  supreme 
court  stands  on  grounds  which  cannot  be  shaken  and  must  be  af- 
firmed. 

Morse,  J.,  did  not  hear  the  argument. 

Judgment  affirmed. 

VAN  HOVEN,  EX  PARTE  HENRY,  (1876,  U.  S.— Belgium) 

4  Dillon  415. 

Dillon,  Circuit  Court. 

[Complaint  under  oath  of  consul  general  of  Belgium,  although 
based  entirely  upon  the  strength  of  depositions  and  telegrams  of  said 
foreign  state,  is  sufficient  to  warrant  holding  of  prisoner. — Ed.] 

VERGIL,  IN  RE,   (1857,  Arbitration  between  Peru  and  the  United 

States) 
4  Moore  Int.  Arb.  4,390. 

[The  mixed  commission  awarded  damages  to  the  heirs  of  the  de- 
ceased Peruvian  citizen  Vergil,  because  the  Peruvian  consul  was  not 
allowed  to  act  as  executor  or  administrator  in  accordance  with  the 
treaty  of  July  26,  1851,  art.  39.— Ed.] 

VILLENEUVE  v.  BARRION,  (Given  in  foot  note  to  Caignet  v.  Pettit) 
(1795,  U.  S.— France) 

2  Dall.  235  note;  1  L.  Ed.  362. 
Per  Curiam,  Circuit  Court. 

VIVEASH  V  BECKER,  (1814,  Great  Britain) 

3  Mau.  &  Sel.  284;  2  Phillim.   (2d  Ed.)  309. 
Lord  Ellenhorough,  Court  of  King's  Bench. 

A  resident  merchant  of  London,  who  is  appointed  and  acts  as  consul  to  a 
foreign  prince,  is  not  exempted  from  arrest  upon  mesne  process. 

423 


CONSULAR  CASES 

This  case  was  argiied  on  a  former  day,  upon  a  rule  nisi  for  de- 
livering up  the  bail  bond  to  be  cancelled,  by  Richardson  and  Gifford, 
against  the  rule,  and  Scarlett  and  Campbell  in  support  of  it.  The 
question  made  was,  whether  the  defendant,  who  had  been  arrested  for 
a  debt  of  £548  at  the  suit  of  the  plaintiffs,  and  compelled  to  give 
his  bond,  was  entitled,  as  consul  to  the  Duke  of  Sleswick  Holstein 
Oldenburg,  to  privilege  from  arrest.  On  the  one  side  it  was  con- 
tended, upon  the  authority  (285)  of  Wicquefort  (a),  which  it  was  said 
is  not  contradicted  by  Vattel,  that  consuls  are  liable  to  the  justice  of 
the  place  where  they  reside,  as  well  in  civil  as  criminal  matters.  On 
the  other  side,  the  authority  of  Wicquefort  was  said  not  to  be  support- 
ed by  the  only  two  instances  which  he  quotes  of  the  Dutch  and 
Venetian  consuls,  whose  arrest  appears  to  have  been  made  the  subject 
of  complaint  and  remonstrance  by  their  respective  courts,  as  being  a 
violance  done  to  the  law  of  nations  (&).  And  "Wicquefort,  in  an- 
other place  (c),  discoursing  of  commissioners,  who  he  says  are  some- 
times public  ministers,  adds,  "C'est  ce  que  se  droit  aussi  entendre  des 
coyisxds."  And  the  authority  of  "Wicquefort  may  be  opposed  by  that 
of  "Vattel,  who  lays  it  down  (d),  "that  a  consul  is  entitled  to  the  pro- 
tection of  the  law  of  nations;"  and  again,  "that  his  functions  require 
that  he  should  be  independent  of  the  ordinary  criminal  justice  of  the 
place  where  he  resides,  so  as  not  to  be  molested  or  imprisoned,"  etc- 
A  variety  of  other  extracts  from  the  same  authors,  and  several  cases 
were  also  referred  to  on  each  side  in  the  course  of  the  argument,  but 
as  the  whole  is  so  fully  noticed  and  commented  on  in  the  judgment 
of  the  court,  it  is  conceived  that  this  short  outline  of  the  argument 
will  be  sufficient.     The  court  took  time  to  consider. 

LORD  ELLENBOROUGH,  C.  J.,  on  this  day  gave  judgment 
nearly  as  follows : 

This  was  a  rule  to  show  cause  why  the  bail  bond  should  not  be 
delivered  up  to  be  cancelled,  and  in  the  meantime  proceedings  staid. 
This  application  to  the  (286)  court  was  founded  on  the  circumstance 
of  the  defendant  being  consul  to  the  Duke  of  Sleswick  Holstein  Olden- 
burg. He  grounds  his  applications  upon  an  affidavit  in  which  he  states 
his  appointment  as  con.sul.  He  states  that  on  the  20th  of  January 
last  the  Duke  of  Oldenburg  apopinted  him  his  consul  by  an  instru- 
ment under  the  seal  of  the  duchy  in  this  form:  "His  Serene  Highness 
the  Duke  of  Sleswick  Holstein  Oldenburg,  reigning  Prince  of  Lubec, 
etc.,  having  judged  proper  for  the  benefit  and  interest  of  his  subjects 
to  establish  a  consul  and  agent  for  the  commercial  relations  in  Eng- 

(o)  Book  1.  c.  5.     (b)  Ibid,     (c)  Ibid. 
(d)  Book  2.  c.  2.  a.  34. 

424 


CONSULAR  CASES 

land,  and  considering  the  good  testimonies  which  have  been  rendered 
to  him  of  Mr.  Charles  Christian  Becker,  merchant,  resident  in  Lon- 
don, has  named  him  the  said  C.  C.  Becker  as  such,  and  confided  to 
him  the  said  office  until  revocation,  on  condition  that  the  said  con- 
sul shall  observe  the  instructions  that  shall  be  given  him  by  the 
government  of  Oldenburg,  requesting  each  and  every  one,  accord- 
ing to  his  rank,  title,  and  dignity,  to  recognize  the  said  C. 
C.  Becker  as  consul  and  agent  for  the  commercial  relations 
of  his  Serene  Higlmess  the  Duke  of  Oldenburg,  etc.  and  to  grant 
him  the  free  exercise  of  his  functions,  and  to  let  him  enjoy  the  liberties, 
immunities  and  prerogatives  attached  to  such  a  charge. ' '  On  this  in- 
strument one  thing  is  to  be  observed,  that  it  is  not  addressed  to  the 
sovereign  of  the  state  in  which  he  is  to  exercise  his  functions,  but  only 
to  the  public  at  large ;  it  is  a  kind  of  sciant  omnes,  requesting  of 
every  one  that  he  may  be  recognized  as  consul  and  agent  for  com- 
mercial relations,  and  allowed  the  free  exercise  of  his  functions. 
What  those  functions  are,  is  in  some  degree  made  to  appear  by  what 
follows.  For  the  affidavit  goes  on  to  state,  "that  he  requested  the 
prince  regent  to  grant  his  permission  and  approbation  for  him  to  take 
upon  himself  (287)  the  said  office,  and  that  the  Prince  Regent  was 
pleased  to  approve  him,  signifying  such  approbation  in  an  instrument, 
addressed  to  all  his  majesty's  subjects,  and  reciting  the  appointment 
by  the  Duke  of  Oldenburg  of  C.  C.  Becker  to  be  his  consul  in  Eng- 
land to  assist  his  subjects  and  people  in  their  commerce  and  traffic 
there;"  and  it  concludes,  "We  having,  thereupon,  approved  of  the 
said  C.  C.  Becker,  as  consul  aforesaid,  our  will  and  pleasure  is,  and 
we  do  hereby  require  you  to  receive,  countenance,  and,  as  there  may 
be  occasion,  favorably  to  assist  him  the  said  C.  C.  Becker  in  the  ex- 
ercise of  his  place,  giving  and  allowing  unto  him  all  privileges,  im- 
munities, and  advantages  thereunto  belonging."  This  leaves  him  to 
the  immunities  which  belong  to  him  as  consul,  for  so  the  words  "there- 
unto belonging"  must  be  understood.  Now  what  are  the  functions 
which  he  is  to  exercise?  That  appears  from  the  instructions  which 
accompany  the  appointment,  and  which  are  stated,  1st,  "that  he  shall 
endeavor  to  be  useful  in  all  possible  ways  to  the  subjects  of  the  Duke 
of  Oldenburg,  etc.,  particularly  to  sea-faring  men,  and  to  render 
them  the  necessary  succours ;  particularly  (now  it  specifies)  if  in  time 
of  war  any  ships  with  Oldenburg  passports  should  be  brought  up 
as  prize  in  any  of  the  ports  of  England,  and  should  there  be  detained 
under  any  pretext  whatsoever,  or  if  the  individual  subjects  of  his 
Serene  Highness,  who  may  be  on  board  either  in  the  quality  of  sailors, 
or  in  any  other  quality  whatsoever,  should  be  detained  as  prisoners 
of  war,  the  consul  shall  be  bound  to  render  them  all  the  necessary 

425 


CONSULAR  CASES 

succours  and  immediately  to  make  the  necessary  intercessions  or  re- 
clamations at  the  proper  tribmials  to  procure  them  their  liberty. 
Secondly,  he  is  charged  with  the  same  duties  in  all  the  other  ports 
of  England  so  long  (288)  as  no  consul  is  established  there;"  it  con- 
temphites.  therefore,  the  possibility  of  there  being  a  consul  in  every 
port.  "Thirdly,  he  is  authorized  to  appoint  vice-consuls  in  all  the 
other  ports  of  England."  And  this  very  much  relieves  the  case 
from  the  difficulty  which  was  suggested  upon  the  argument;  because 
it  appears  he  might  appoint  a  vice-consul,  perhaps  even  in  the  port 
of  London.  And  if  that  be  so,  there  cannot  be  any  great  mischief 
likely  to  ensue  from  his  personal  restraint ;  for  though  he  himself  may 
be  prevented  from  exercising  his  functions,  yet  if  he  may  delegate 
those  functions,  they  will  continue  to  be  exercised  in  the  same  man- 
ner as  if  he  was  at  full  liberty.  His  functions  then  are  purely  of 
a  commercial  nature,  and  such  as  properly  belong  to  a  consul,  those 
of  advice  and  intercession ;  and  there  is  no  one  function  of  state  pur- 
pose to  be  performed  by  him  as  representing  the  sovereign  of  his 
state.  This  is  the  instrument  from  which  his  functions  are  to  be 
collected  (a).  He  is  invested  with  them  eo  nonmie  as  consul,  which 
makes  a  distinction  between  the  present  and  the  case  before  Lord 
Talbot  (b)  ;  for  there  he  was  named  only  "agent  of  commerce," 
which  left  a  difficulty,  and  made  part  of  the  labor  of  the  argument  in 
that  case,  to  ascertain  what  his  fimctions  were;  he  was  not  named 
consul.  But  it  must  be  recollected  that  Lord  Talbot  said,  although  he 
was  called  only  an  agent  of  commerce,  he  did  not  think  that  the  name 
altered  the  case,  and  that  at  most  he  was  only  a  consul.  Such  are 
the  words  of  Lord  Talbot.  Now  here  (289)  he  is  expressly  designated, 
by  name,  consul,  and  nothing  more.  The  affidavit  proceeds  to  state 
"that  the  Prince  Regent's  approbation  of  his  appointment  to  be 
consul  was  notified  in  the  London  Gazette  on  the  12th  of  March 
1814."  This  carries  the  case  no  farther:  the  instrument  which  he 
brings  Dvor  notifies  to  overy  class  of  persons  by  the  aciant  omnes,  that 
he  is  to  have  the  character  of  consul,  and  the  same  is  notified  in  the 
Gazette.  The  affidavit  then  goes  on,  "that  he  has  ever  since  exercised 
the  office,  that  his  appointment  and  powers  are  still  in  force,  and  that 
the  Duke  of  Oldenburg  has  during  the  time  had  no  other  minister  or 
diplomatic  agent  in  this  coimtry.  and  that  he  has  during  the  time 
acted  as  a  diplomatic  agent,  and  as  consul  for  the  duke."     It  would 


(a)  The  instructionfl  contained  two  other  articles,  4thly,  "Charging  the  Olden- 
burg captains  to  preBont  themselves  before  the  consul  who  is  to  sign  their  papers, 
&c.  .5th,  Every  subject  of  his  serene  highness  who  presents  himself  before  the 
consul,  and  demands  a  passport,  shall  have  a  right  to  receive  it  immediately," 
&c. 

(b)  Barbuit's  case,  Cas.  temp.  Talbot,  281.     Cited  3  Burr.  1481, 

426 


CONSULAR  CASES 

have  been  as  well  if  he  had  stated  in  what  particular  function  as  a 
diplomatic  agent  distinct  from  his  function  as  consul,  he  ever  acted 
for  the  duke.  The  affidavit  does  indeed  go  on  to  state,  "that  during 
the  time  he  has  by  the  authority  and  as  representative  of  the  duke, 
applied  for  and  obtained  a  large  supply  of  arms  and  ammunition  from 
the  British  government  for  the  duke,  and  that  he  has  been  and  is  in 
the  habit  of  receiving  instructions  from  the  duke  to  attend  to  matters 
totally  distinct  from  commerce  for  the  duke  with  the  British  govern- 
ment. ' '  But  if  he  was  in  the  habit  of  receiving  instructions  for  such 
purposes  as  these,  it  would  have  been  material  to  have  shown  that  he 
communicated  such  instructions;  but  he  has  not  so  done,  neither  does 
he  affect  to  allege  that  the  government  of  this  country  has  received 
him  in  the  character  of  a  person  entrusted  to  make  and  making  such 
communications.  He  says,  "he  has  applied  for  and  obtained  from  the 
government  (290)  a  large  supply  of  arms  and  ammunition;"  be  it  so; 
but  we  cannot  but  remember,  if  we  carry  our  recollection  back  a  little, 
that  at  the  time  to  which  the  affidavit  relates,  it  did  not  require  the 
intervention  of  a  public  functionary  to  make  application  for  and  ob- 
tain a  large  supply  of  arms  and  ammunition  from  this  countrj^;  I 
allude  to  the  supply  of  arms  which  was  afforded  by  this  country  for 
the  liberation  of  Holland.  This  supply  was  probably  granted  upon 
the  application  of  this  person,  in  the  same  manner  as  I  dare  say  it 
was  upon  the  application  of  others  who  had  no  public  functions, 
for  the  liberation  of  Europe  from  the  thraldom  under  which  it  lay. 
In  answer  to  this  two  affidavits  have  been  filed,  the  first  of  which 
states  that  the  defendant  resides  in  London,  and  for  several  years 
past,  and  before  his  appointment  of  consul  carried  on  and  still  carries 
on  the  business  of  a  merchant  in  London,  and  in  1811  became  bank- 
rupt, and  that  the  defendant  owes  debts  to  the  amount  of  £120,000; 
that  search  has  been  made  at  the  sheriff's  office,  and  that  his  name  is 
not  entered  in  the  lists  there  as  a  privileged  person ;  that  a  consul  is 
not  considered  as  pri\nleged  from  arrest,  and  that  the  sheriff  has  been 
in  the  habit  of  arresting  consuls  without  any  resistance  being  made. 
There  is  another  affidavit  also  stating  that  application  has  been  made 
at  the  secretary  of  state's  office,  in  order  to  discover  if  the  defendant's 
name  was  registered  there  as  a  public  minister;  and  that  the  depo- 
nent Avas  informed  that  a  couvsul  was  Dot  considered  in  that  depart- 
ment as  a  public  minister.  Thus  the  question  is  reduced  to  this, 
whether  this  defendant  is  entitled  to  the  privilege  of  immunity  from 
arrest,  as  belonging  to  him  in  his  mere  character  of  consul.  Every 
person  (291)  who  is  conversant  with  the  history  of  this  country  is 
not  ignorant  of  the  occasion  which  let  to  the  passing  of  the  statute 

427 


CONSULAR  CASES 

7  Ann.  c.  12.  (a)  An  embassador  of  the  Czar  Peter  had  been  arrested, 
and  had  put  in  bail  ;  and  this  matter  was  taken  up  with  considerable 
inflammation  and  anger  by  several  of  the  European  courts,  and  par- 
ticularly by  that  potentate.  In  order  to  soothe  the  feelings  of  these 
powers  the  act  of  parliament  was  passed,  in  which  it  was  thought  fit 
to  declare  the  immimities  and  privileges  of  embassadors  and  public 
ministers  from  process;  and  it  was  enacted,  (s.  4.)  "that  in  case  any 
persons  should  presume  to  sue  forth  or  prosecute  any  such  writ,  op 
process,  such  persons,  etc.  being  thereof  convicted  should  be  deemed 
violaters  of  the  laws  of  nations,  and  disturbers  of  the  public  repose, 
and  should  suffer  such  penalties  and  corporal  punishment  as  the  Lord 
Chancellor,  Lord  Keeper,  or  the  Chief  Justice  of  the  Queen's  Bench 
or  Common  Pleas,  or  any  two  of  them,  should  judge  fit  to  be  inflicted." 
Thus  was  conferred  a  great  and  extraordinary  power,  which  I  am 
happy  to  say  in  no  other  instance  belongs  to  those  persons;  but  the 
act  of  parliament  was  passed  by  way  of  apology,  and  in  order  to 
conciliate  the  powers  offended.  It  declares  also  that  "all  writs  and 
processes  that  shall  in  future  be  sued  forth,  whereby  the  person  of  any 
embassador  or  other  public  minister  of  any  foreign  prince  or  state 
may  be  arrested  or  imprisoned,  etc.,  shall  be  deemed  to  be  utterly 
null  and  void."  Here  then  the  question  is  if  this  defendant  be  an 
embassador  or  other  public  minister  of  a  foreign  prince  or  state.  He 
certainly  is  a  person  invested  with  some  authority  (292)  by  a  foreign 
prince ;  but  is  he  a  public  minister  ?  There  is,  I  believe,  not  a  single 
^\Titer  on  the  law  of  nations,  nor  even  of  those  who  have  written 
looser  tracts  on  the  same  subject,  who  has  pronoimced  that  a  consul  is 
eo  nomine  a  public  minister;  and  unless  he  be  such  he  is  not  within 
the  comprehension  of  the  act  of  parliament.  It  has  been  very  truly 
said  that  the  act  is  declaratory  of  the  common  law,  and  of  the  law 
of  nations;  and  hence  it  has  been  argued  that  he  may  be  entitled  to 
this  privilege  by  the  law  of  nations,  though  he  be  not  expressly  desig- 
nated in  the  act.  That  may  be  so;  although  it  is  not  very  probable 
that  when  the  act  of  parliament  was  passed  for  the  purpose  of  labor- 
iously and  comprehensively  exempting,  as  far  as  possible,  all  persons 
who  stood  in  any  relation  to  foreign  states  which  would  entitle  them 
by  the  law  of  nations  to  be  exempted,  it  should  have  omitted  to  desig- 
nate any  description  of  persons  whom  it  meant  to  include.  Therefore, 
upon  the  fair  understanding  of  the  statute,  the  question  is,  whether 
he  be  a  public  minister.  If  he  be,  he  is  protected  by  the  act,  his 
arrest  being  in  prejudice  of  the  rights  and  privileges  of  public  min- 
isters.    But  supposing  the  defendant  to  be  one  of  those  public  func- 

(a)  See  1  Black.  Com.  255. 

428 


CONSULAR  CASES 

tionaries  who  may  be  entitled  to  the  privileges  of  the  law  of  nations; 
how  does  the  ease  stand  upon  the  usage  as  it  exists  under  that  law? 
In  several  books  referred  to  in  the  course  of  the  argument,  and  prin- 
cipally in  Vattel,  b.  2.  c.  2.  s.  34.  "Of  consuls,"  I  find  it  laid  down 
thus:  "Among  the  modem  institutions;"  (and  therefore  this  in- 
stitution of  consul  is  not  like  that  of  the  legatus  of  old,  of  whom  and 
of  whose  rights  the  Roman  history  is  full,  but  according  to  Vattel 
it  is  of  modern  date,  and  even  in  more  modern  times,  in  Grotius,  who 
(293)  is  very  learned  and  laborious  in  his  chapter  on  the  subject  of 
legati,  the  name  of  consul  never  occurs;  and  in  Molloy  there  is  not 
a  word  about  consul;  but  to  proceed  with  Vattel)  "Among  the  modem 
institutions  for  the  utility  of  commerce  one  of  the  most  useful  is  that 
of  consuls,  or  persons  residing  in  the  large  trading  cities,  and  espec- 
ially in  foreign  sea-ports,  with  a  commission  empowering  them  to 
attend  to  the  rights  and  privileges  of  their  nation,  and  to  terminate 
misunderstandings  and  contests  among  its  merchants.  When  a  na- 
tion trades  largely  with  a  country,  it  is  requisite  to  have  there  a 
person  charged  with  such  a  commission,  and  as  the  state  which  al- 
lows of  this  commerce  must  naturally  favor  it,  so  for  the  same  reason 
it  is  likewise  to  admit  a  consul.  But  there  being  no  absolute  and 
perfect  obligation  to  this,  the  nation  disposed  to  have  a  consul,  must 
procure  itself  this  right  by  the  very  treaty  of  commerce."  He  goes 
on,  "The  consul  is  no  public  minister,  and  cannot  pretend  to  the 
privileges  appertaining  to  such  character.  Yet  bearing  his  sovereign 's 
commission,  and  being  in  this  quality  received  by  the  prince  in  whose 
dominions  he  resides,  he  is  in  a  certain  degree  entitled  to  the  pro- 
tection of  the  law  of  nations. ' '  No  doubt  he  is  entitled  to  the  protec- 
tion of  the  law  of  nations,  and  so  is  every  man  who  comes  into  this 
country  from  a  foreign  state  under  a  safe  conduct.  Vattel  proceeds : 
"The  sovereign,  by  the  very  act  of  receiving  him,  tacitly  engages  to 
allow  him  all  the  liberty  and  safety  necessary  to  the  proper  discharge 
of  his  functions,  without  which  the  admission  of  the  consul  would  be 
insignificant  and  deceptive.  His  functions  first  require  that  he  be  not 
a  subject  of  the  state  where  he  resides ;  as  then  he  would  be  obliged  in 
all  (294)  things  to  conform  to  its  orders,  and  thus  not  be  at  liberty  to 
acquit  himself  of  the  duties  of  his  post."  "What  is  the  case  of  this 
defendant?  He  is  not  indeed  stated  to  be  a  natural  born  subject  of 
this  country,  but  he  is  shown  to  be  a  person  owing  a  temporary  alleg- 
iance, and  it  is  not  negatived  that  he  is  a  subject  born.  At  any  rate 
it  appears  that  he  is  a  merchant  domiciled,  and  subject  to  the  bank- 
rupt laws.  If  he  has  incurred  penalties  under  those  laws,  shall  he 
be  exempted  from  their  operation  by  being  appointed  a  consul  of  a 
foreign  prince?     Vattel  says,  "his  functions  seem  to  require    (and 

429 


CONSULAR  CASES 

this  is  merely  argument  and  it  is  put  as  doubtful)  that  the  consul 
should  be  independent  of  the  ordinary  criminal  justice  of  the  place 
where  he  resides,  so  as  not  to  be  molested  or  imprisoned,  unless  he 
himself  violate  the  laws  of  nations  by  some  enormous  misdemeanor." 
This  certainly  may  at  first  seem  to  import  that  Vattel  considered  a 
consul  to  be  entitled  to  all  the  pri\nleges  of  an  embassador.  But  let 
us  advert  to  the  fourth  book  of  the  same  author,  ch.  6.  s.  75.  In  the 
sections  immediately  preceding  that  section,  he  has  been  discussing 
the  different  functions  of  embassadors,  envoys,  residents,  and  the 
last  description  is  that  of  ministers.  He  then  says  in  s.  75.  "We 
have  spoken  of  consuls  in  the  article  of  commerce.  (B.  2.  c.  2.  s.  34.) 
Formerly  agents  were  a  kind  of  public  ministers ;  but  in  the  pres- 
ent increase  and  profusion  of  titles  this  is  given  to  mere  commissioners 
appointed  by  princes  for  their  private  affairs,  and  who  not  unfre- 
quently  are  subjects  of  the  country  where  they  reside.  They  are  not 
public  ministers,  and  consequently  not  under  the  protection  of  the 
law  of  nations.  But  a  more  particular  protection  is  due  to  them 
than  to  other  foreigners  or  citizens,  and  (295)  some  regard  in  con- 
sideration of  the  prince  whom  they  serve."  Then  he  says,  "If  the 
prince  sends  an  agent  with  credentials  and  for  public  affairs,  the 
agent  from  that  time  becomes  a  public  minister."  Then  he  goes  to 
another  subject  and  discourses  of  credentials,  by  which  the  character 
of  the  minister  is  made  kno\\Ti  to  the  sovereign  to  whom  he  is  sent. 
It  was  so  positively  averred  in  the  argument  that  Vattel  was  an  auth- 
ority to  show  that  consuls  were  under  the  protection  of  the  law  of 
nations,  that  I  was  desirous  of  consulting  him;  and  the  passage  to 
which  I  have  referred  shows  that  it  is  otherwise.  So  in  another 
place,  B.  4.  c.  8.  s.  112.  he  says,  "A  subject  of  the  state  may  even  in 
accepting  the  commission  of  a  foreign  prince  remain  a  subject."  And 
he  adds  that  the  states  general  of  the  United  Provinces  in  1681  de- 
clared, "that  no  subject  of  the  state  should  be  received  as  embassador, 
or  minister  of  another  power,  but  on  condition  that  he  should  not 
divest  himself  of  his  quality  of  subject,  even  with  regard  to  the  juris- 
diction both  in  civil  and  criminal  affairs;  and  that  whoever,  in  making 
himself  known  as  embassador,  or  minister,  had  not  mentioned  his 
quality  of  subject  to  the  state,  should  not  enjoy  those  rights  or 
privileges,  which  are  peculiar  to  the  ministers  of  foreign  powers."  I 
confess  I  should  be  afraid  to  say  that  an  embassador  announced  imder 
that  name  would  not  be  entitled  to  the  privileges  belonging  to  the 
ministers  of  foreign  powers,  except  upon  the  condition  in  the  above 
declaration.  But  Vattel  proceeds,  "Such  a  minister  may  likewise 
retain  his  former  subjection  tacitly,  and  then  by  a  natural  conse- 
quence drawn  from  his  actions,  state,  and  whole  behavior,  it  is  knou-n 

430 


CONSULAR  CASES 

that  he  continues  a  subject.  Thus  notwithstanding  the  declaration 
above  mentioned,  (296)  those  Dutch  merchants  who  procure  to  them- 
selves the  title  of  residents  of  some  foreign  prince,  yet  continue  in 
trade,  thereby  sufficiently  denote  that  they  remain  subjects."  Again 
I  should  be  afraid  of  adopting  a  rule  that  would  leave  it  to  the  party 
himself,  whether  or  not  he  w^ould  deprive  his  sovereign  of  the  bene- 
fit resulting  from  the  privileges  belonging  to  his  character  of  minister. 
However  Vattel  says,  "Whatever  inconveniences  there  may  be  in  the 
subjection  of  a  minister  to  the  sovereign  with  whom  he  resides,  if  the 
foreign  prince  will  put  up  with  such  inconveniences,  and  is  content- 
ed with  a  minister  on  that  footing,  it  is  his  oa\ti  doing,  and  should 
his  minister  on  any  ignominious  occasion  be  treated  as  a  subject,  he 
has  no  cause  of  complaint."  This  is  peculiarly  the  case  with  respect 
to  consuls;  for  in  fact  they  generally  are  the  subjects  of  the  state 
to  which  they  are  appointed,  and  in  which  they  reside.  A  knowledge 
of  the  language  of  the  country,  and  of  the  forms  W'hich  exist  there, 
such  as  will  be  best  found  in  a  subject  of  the  country,  is  absolutely 
necessary  for  the  discharge  of  their  functions ;  and  if  the  sovereign 
of  a  foreign  state  is  contented  to  appoint  a  subject,  he  must  put  up 
with  all  the  consequences  which  may  attend  his  being  a  subject.  This 
is  according  to  what  is  laid  down  in  Vattel,  and  therefore  it  has  not 
been  correctly  asserted  that  he  is  at  variance  with  the  other  authorities 
upon  the  nature  of  a  consul's  character.  Wicquefort  and  Barbeyrac 
are  decidedly  of  the  same  opinion  that  a  consul  is  not  entitled  to  the 
jus  gentium  belonging  to  embassadors.  And  in  Barbuit's  case  Lord 
Talbot  said,  that  as  there  w^as  no  authority  for  considering  the  defen- 
dant in  any  other  vie^v  than  as  a  consul,  unless  he  could  be  satisfied 
(297)  that  those  acting  in  that  capacity  were  entitled  to  the  jus 
gentium  he  could  not  discharge  him.  It  appears  from  a  note  to  that 
case  that  the  government  afterwards  settled  the  matter;  and  very  like- 
ly, it  was  thought  convenient  to  our  relations  at  that  time,  consider- 
ing our  connection  wnth  the  sovereign  who  had  appointed  the  con- 
sul, to  soothe  him  by  payment  of  the  money.  That  is  the  farthest 
extent  to  which  the  argument  arising  from  what  was  done  in  that 
case  can  be  carried;  for  Lord  Talbot  seems  to  have  been  of  opinion 
that  as  consul  he  was  not  entitled.  The  case  in  Burrow  (a)  turned 
merely  on  the  construction  of  the  clause  in  the  act  of  parliament  re- 
specting the  servants  of  embassadors,  and  did  not  involve  this  ques- 
tion. The  case  before  Lord  Talbot  is  the  only  one  upon  the  subject. 
Clarke  v.  Cretico  (&)  was  decided  upon  the  ground  of  the  party  being 
divested  of  the  character  of  consul  at  the  time  of  the  arrest,  but  the 


(a)  Triquet  v.  Bath,  3  Burr.  1478. 
(&)    1  Taunt.  106. 


431 


CONSULAR  CASES 

chief  justice  seems  to  have  inclined  to  the  opinion  that  a  consul  was 
not  privileged.  In  the  absence  then  of  all  authority,  either  of  cus- 
tom or  the  law  of  nations,  how  can  we  say  that  a  consul  is  entitled  to 
this  privilege?  The  instances  cited  from  Wicquefort  prove  the  con- 
tran'.  The  dispute  between  the  pope  and  the  republic  of  Venice  is 
detailed  at  length  in  (c)  Beawes,  from  which  it  appears  that  the  vio- 
lance  offered  to  the  consul  of  that  republic  by  the  governor  of  Ancona, 
was  of  such  a  sort,  and  done  in  such  a  manner  as  would  have  entitled 
any  sovereign  state  imder  the  like  circumstances  to  have  made  re- 
clamation ;  their  consul  was  grossly  insulted.  Nobody  is  disposed  to 
deny  that  a  consul  is  entitled  to  privileges  to  a  certain  extent;  such 
(298)  as  for  safe  conduct,  and  if  that  be  violated  the  sovereign  has 
a  right  to  complain  of  such  violation.  This  consideration  disposes  of 
the  authority  which  was  endeavored  to  be  derived  from  that  case. 
Then  it  is  expressly  laid  down  that  he  is  not  a  public  minister,  and 
more  than  that,  that  he  is  not  entitled  to  the  jus  gentium.  And 
I  cannot  help  thinking  that  the  act  of  parliament  which  mentions 
onl}'  "embassadors  and  public  ministers"  and  which  was  passed  at 
a  time  when  it  was  an  object  studiously  to  comprehend  all  kinds  of 
public  ministers  entitled  to  these  privileges,  must  be  considered  as 
declatory  not  only  of  what  the  law  of  nations  is,  but  of  the  extent 
to  which  that  law  is  to  be  carried.  It  appears  to  me  that  a  dif- 
ferent construction  would  lead  to  enormous  inconveniences,  for 
there  is  a  power  of  creating  vice-consuls;  and  they  too  must  have 
similar  privileges.  Thus  a  consul  might  appoint  a  vice  consul  in  every 
port  to  be  armed  with  the  same  immunities,  and  be  the  means  of  creat- 
ing an  exemption  from  arrest  indirectly  which  the  crown  could  not 
grant  directly.  The  mischief  of  this  would  be  enormous.  In  this 
case  it  does  not  appear  that  the  debt  was  not  contracted  before  the 
time  of  the  defendant's  having  the  character  of  consul.  If  we  saw 
clearly  that  the  law  of  nations  was  in  favor  of  the  privilege,  it  would 
be  afforded  to  the  defendant;  and  it  would  be  our  duty  rather  to  ex- 
tend than  to  narrow  it.  But  we  are  of  opinion  that  no  such  privilege 
exists,  but  that  this  defendant  is  like  every  other  merchant  liable  to 
arrest. 

Rule  discharged. 

VON  THOROROVICH  v.  FRANZ  JOSEF  BENEFICIAL  ASS'N.,  (1907, 

T'.  S. — Austria-Hungary) 
154  Fed.  Rep.  911. 
Archhald,  Circuit  Court. 

In  equity.     On  motion  for  preliminary  injunction, 
(c)  p.  299.    5th  edit. 

432 


CONSULAR  CASES 

Adolph  Eichholz,  for  plaintiff. 
Henry  J,  Scott,  for  defendants. 

ARCHBALD,  District  Judge.'  This  is  a  bill  brought  by  the 
imperial  and  royal  consul  of  Austria-Hungary,  located  at  Philadel- 
phia, to  restrain  the  defendant  company,  its  officers  and  agents,  from 
making  use  of  the  name  or  portrait  of  the  Emperor  Franz  Josef, 
or  from  representing  or  doing  anything  to  induce  the  belief  that  the 
business  conducted  by  the  company  has  any  official  or  other  relation 
with  such  (912)  emperor.  The  company  was  incorporated  in  1887 
by  the  court  of  common  pleas  No.  2,  of  Philadelphia,  as  a  beneficial 
association,  luader  the  general  corporation  act  of  the  state  of  Pennsyl- 
vania of  April  29,  1874  (P.  L.  73),  which,  among  other  things,  allows 
(section  2)  the  formation  of  corporations  for  "the  maintenance  of  a 
society  for  beneficial  or  protective  purposes  to  its  members,  from 
funds  collected  therein;"  and  it  was  subsequently  merged  with  the 
Panonia  Beneficial  Association  ,  thereafter  apparently  losing  its 
identity  and  ceasing  to  exist  as  a  separate  organization.  "Within  the 
last  year,  however,  in  some  way  which  is  not  disclosed,  the  individual 
defendants,  who  are  its  officers,  have  got  hold  of  the  charter  and  are 
carrying  on  a  life  insurance  business  under  it,  soliciting  the  patron- 
age of  persons  of  German,  Hungarian,  Polish,  and  Slavish  birth,  who 
have  emigrated  to  the  United  States  from  Austria-Hungry,  and  are 
subjects  of  the  Emperor  Franz  Josef;  it  being  represented  to  them, 
in  that  connection,  that  the  association  is  under  his  special  patronage 
and  has  his  imperial  sanction  and  concern,  of  which  the  use  of  his 
name  to  designate  the  association,  and  the  adoption  of  his  portrait  as 
a  part  of  the  corporate  seal,  is  a  direct  assurance,  according  to  the 
customs  of  the  country  from  which  they  come.  National  feeling  and 
loyalty  to  the  emperor  are  thus  played  upon  to  further  the  business 
of  the  association,  the  deceptive  and  fradulent  character  of  which,  as 
it  is  claimed,  is  evidenced  not  only  by  these  misstatements,  but  by 
others  as  to  its  original  organization,  age,  and  present  financial  stand- 
ing, in  line  with  which  the  imposing  building  of  the  Liverpool,  London 
&  Globe  Insurance  Company,  on  Walnut  street,  Philadelphia,  where 
the  defendants  occupy  two  small  and  scantily  furnished  rooms,  is 
pictured  and  palmed  off  as  the  home  office  of  the  association.  Feeling 
that  his  countrymen  are  being  deceived  and  cheated  and  are  in  need 
of  his  assistance  and  protection,  the  present  bill  has  been  filed,  and  an 
injunction  is  sought  by  the  consul  to  put  an  end  to  these  practices. 

The  right  of  the  consul  to  intervene  in  this  way  is  challenged 
upon  several  grounds.     The  whole  basis  of  the  bill,  as  it  is  said,  is  the 

^Specially  assigned. 

433 


CONSULAR  CASES 

use  of  the  emperor's  name,  which,  except  sentimentally,  is  no  con- 
cern of  the  consul;  the  breach  of  privacy  involved,if  any,  being  a 
personal  matter,  which  the  emperor  himself  must  go  about  to  redress, 
and  not  the  consul.  And  against  this,  moreover,  as  it  is  claimed, 
equity  will  not  relieve  even  as  to  an  ordinary  individual  (Robertson  v. 
Rochester  Folding  Box  Co.,  171  N.  Y.  538,' 64  N.  E.  442,  89  Am.  St. 
Rep.  828.  59  L.  R.  A.  478;  Atkinson  v.  Doherty  &  Co.,  121  Mich.  372, 
80  X.  W.  285,  46  L.  R.  A.  2]  9,  80  Am.  St.  Rep.  507),  much  less  one 
standing  in  the  public  eye  like  the  emperor.  Corliss  v.  AValker  Co., 
57  Fed.  434.  64  Fed.  280,  31  L.  R.  A.  283.  But  without  assenting  to 
all  that  is  so  said  it  is  correct  to  the  extent,  that,  if  the  use  of  the  em- 
peror's name,  in  connection  with  the  defendant  association,  is  offensive 
to  the  emperor  or  his  subjects,  it  is  not  for  the  consul  to  remedy  it. 
The  Anne.  3  Wheat.  (U.  S.)  435.  4  L.  Ed.  428.  But  that  is  not  ma- 
terial, not  being  the  basis  of  the  present  bill.  The  consul,  in  other 
words,  does  not  come  into  court  in  the  name  or  on  behalf  of  the  em- 
peror. He  is  here  professedly  and  distinctly  to  prevent  the  mislead- 
ing and  defrauding  of  his  countrymen,  and  for  this  he  has  express 
sanction.  By  treaty  between  the  United  (913)  States  and  the  emperor 
of  Austria  ratified  June  27,  1871,  it  was,  among  other  things,  provided 
that : 

' '  Consuls  general,  consuls,  vice-consuls,  or  consular  agents,  of  the  two  coun- 
tries, may  in  the  exercise  of  their  duties,  aj)ply  to  the  authorities  within  their 
district,  whether  federal  or  local,  judicial  or  executive,  *  *  *  for  the  purpose 
of  protecting  the  rights  of  their  countrymen. ' ' 

The  present  suit,  therefore,  if  sustained  by  the  facts,  is  entirely 
ju-stified.  And  as  bearing  upon  this,  it  may  be  noted  in  passing  that 
this  court  some  two  years  ago  entertained  a  somewhat  similar  bill 
under  this  treaty  provision. 

That  the  parties  who  are  in  control  of  the  defendant  association 
are  making  deceptive  use  of  the  Emperor  Franz  Josef's  name  and 
portrait,  for  the  purpose  of  inducing  people  of  Austria-Hungarian 
nationality  to  deal  with  them,  is  clearly  sho\\Ti  by  the  affidavits,  and 
is  not  denied.  Not  only  is  national  sentiment  thus  appealed  to  in 
exploiting  the  business,  which,  within  proper  limits,  may  not  be  repre- 
hensible, but  direct  representation  is  made  that  the  association  is  un- 
der the  particular  patronage  of  the  emperor,  which  is  known  to  be 
untrue,  but  to  which,  according  to  what  is  testified,  the  use  of  his 
name  and  portrait  gives  credence  among  these  people ;  neither  being 
admissible  by  the  laws  of  the  country  from  which  they  come,  except 
by  express  imperial  consent.  This  of  itself  is  suggestive  of  dishonest 
purposes,  but  might  not,  standing  alone,  be  sufficient  to  lay  hold  of, 

434 


CONSULAR  CASES 

if  a  legitimate  and  responsible  business  was  being  conducted.  But 
this  is  not  the  fact.  As  a  beneficial  association,  to  say  no  more,  the 
defendants  have  no  right  to  go  into  life  insurance,  which  is  altogether 
different.  Commonwealth  v.  National  Mutual  Aid  Association,  94 
Pa.  481 ;  Commonwealth  v.  Equitable  Beneficial  Association,  137  Pa. 
412,  18  Atl.  1112.  And  while  the  insurance  department  of  the  state 
may  be  relied  upon  to  remedy  this,  when  once  its  attention  has  been 
called  to  it,  in  the  meantime  ignorant  immigrants  are  liable  to  be  de- 
ceived into  investing  their  money  upon  expectations,  which  have  little 
chance,  if  indeed  they  ever  were  intended  to  be  realized.  Ignorant  of 
the  laws  and  customs  of  the  land,  and  coming  from  a  country  where 
they  are  materially  different,  they  need  the  assistance  of  some  one 
upon  whom  they  can  rely  to  take  measures  such  as  this  to  protect 
them  against  imposition,  and  it  is  for  this,  among  other  things,  that 
the  treaty  evidently  provides.  If  arrested  or  imprisoned,  there  can 
be  no  question  as  to  the  right,  as  well  as  the  duty,  of  the  consul  to 
intervene  in  their  behalf;  and  it  is  but  little  less  important  that  he 
should  do  so  where  their  scanty  and  hard-got  earnings  are  at  stake. 

It  is  true  that  the  association  has  not  failed  as  yet  to  fulfill  its  un- 
dertakings, nor,  so  far  as  appears,  has  any  complaint  with  regard  to 
it  been  made ;  and  in  confining  the  relief  sought  to  restraining  the  use 
of  the  emperor's  portrait  and  name,  which  only  goes  to  a  part  of  the 
mischief  done,  there  may  be  a  suspicion  that  the  consul,  after  all,  is 
more  zealous  in  behalf  of  his  imperial  master  than  those  whose  cause 
he  professes  to  espouse.  But,  starting  out,  as  the  association  does, 
and  making  use  of  deceptive  agencies,  as  those  in  charge  of  its  affairs 
have  sho\\Ti  themselves  ready  and  willing  to  do,  the  fraud  is  so  mani- 
(914)  fest  that  it  is  not  necessary  to  wait  until  actual  injury  has  been 
done,  which  would  only  afford  very  imperfect  relief.  And  while  the 
use  of  the  emperor's  name  is  only  one  of  the  means  employed,  and  if 
innocently  used  there  would  be  no  particular  ground  for  complaint, 
yet  it  is  by  far  the  most  important  one ;  and  perverted,  as  it  is,  and 
lending  itself,  as  it  unfortimately  does,  in  the  control  of  unscrupulous 
parties,  to  the  serious  deception  practiced  in  this  case,  the  only  safety 
is  in  compelling  it  to  be  completely  dropped.  And  if  there  is  occasion 
for  requiring  this  upon  the  facts  shoA^Ti,  the  sentimental  motive,  if  any, 
of  the  plaintiff,  is  of  no  particular  concern.  This  does  not  prevent 
the  defendants,  as  it  will  be  noted,  from  continuing  their  business, 
whatever  it  may  be,  provided  they  do  so  under  another  name,  which 
is  easily  obtained.  Nor  does  it  matter  that  the  name  which  they  have 
was  given  them  by  charter.  The  courts  do  not  hesitate  to  restrain  the 
use  of  corporate  names,  where  they  are  the  means  of  working  injury, 
American  Clay  Mfg.  Co.  v.  American  Clay  Mfg.  Co.,  198  Pa.  189, 

435 


CONSULAR  CASES 

47  Atl.  936;  Singer  Mfg.  Co.  v.  Jiiiie  Mfg.  Co.,  163  IT.  S.  169,  16 
Sup.  Ct.  1002,  41  L.  Ed.  118;  Charles  S.  Higgins  Co.  v.  Higgins 
Soap  Co.,  1-44  N.  Y.  462,  39  N.  E.  490,  27  L.  R.  A.  42,  43  Am.  St. 
Rep.  769;  Van  Ilouten  v.  Hooten  Cocoa  Co.  (C.  C.)  130  Fed.  600. 
The  way  out  of  it  is  to  amend  the  name. 

And  now  July  12,  1907,  after  due  hearing,  it  is  ordered  and  de- 
creed that  a  preliminary  injunction  issue,  restraining,  preventing,  and 
prohibiting  the  said  Franz  Josef  Beneficial  Association,  William  R. 
Evans,  Julius  Bacher,  Victor  Steinberg,  and  Samuel  Steiner,  their 
agents,  representatives,  and  employes,  from  employing,  using,  printing 
or  having  printed  or  impressed,  upon  any  letter  heads,  cards,  certi- 
ficates or  other  literature  or  printed  matter,  either  the  name,  profile, 
or  portrait  of  Franz  Josef,  emperor  of  Austria,  and  king  of  Hungary, 
and  restraining,  prohibiting,  and  enjoining  the  said  Franz  Josef 
Beneficial  Association  and  the  other  said  defendants,  their  agents,  rep- 
resentatives, and  employes,  from  doing  any  and  all  things  calculated  or 
tending  to  induce  the  public  to  believe  that  the  business  conducted  by 
the  defendants  or  the  said  beneficial  association,  whose  officers  and 
agents  they  are,  has  any  official  or  other  relation  with  Franz  Josef, 
emperor  of  Austria,  and  king  of  Hungary,  aforesaid. 

VROW  ANNA  CATHARINA,  (1803,  Great  Britain— Portugal) 

5  Kob.  C.  15. 

Sir  William  Scott,  High  Court  of  Admiralty. 

[The  Dutch  consul  complained  to  the  Portuguese  government 
that  the  capture  made  by  British  was  a  violation  of  neutrality,  and 
the  Portuguese  consul  made  the  claim  in  the  Prize  proceedings. — Ed.] 

WAITSHOAIR  v.  THE  CEAIGEND,  (1890,  U.  S.— Great  Britain) 
42  Fed.  Rep.  175. 
Hanford,  District  Court. 

[Court  takes  jurisdiction  in  a  libel  suit  of  British  seaman  for 
wages.  In  the  case  of  The  New  City,  47  Fed.  Rep.  328,  same  judge 
declared  this  was  done  when  there  was  no  protest  made  by  British 
consul. — Ed.] 

WALDRON  V.  COOMBE,  (1810,  Great  Britain) 

3  Taunt.   162. 

Sir  James  Mansfield,  Court  of  Common  Pleas. 

This  was  an  action  brought  to  recover  the  loss  sustained  by  the 
plaintiff,   by   the   deterioration   of  some  kerseymeres   on   board  the 

436 


CONSULAR  CASES 

Earl  Percy,  insured  by  a  policy  subscribed  by  the  defendant,  "at 
and  from  London  to  Rio  Janerio."  The  plaintiff  averred  a  loss  by 
perils  of  the  sea.  The  defendant  pleaded  iion  assumpsit,  and  paid 
into  court  £50  per  cent.  Upon  the  trial,  at  Guildhall,  at  the  sittings 
in  this  term,  before  Mansfield,  Ch.  J.  the  plaintiff  proved,  that,  if 
the  goods  had  not  been  damaged,  the  market  would  have  afforded 
a  profit  of  £15  per  cent. ;  that  the  goods  were  damages,  apparently  by 
seawater,  to  a  considerable  degree;  the  witness  would  not  have  given 
£30  per  cent,  for  them ;  but  the  plaintiff  gave  no  other  evidence  of  the 
manner  in  which  the  damage  was  occasioned.  To  prove  the  amount 
of  the  loss,  a  witness  produced  a  certificate  from  the  British  vice- 
consul  there,  of  the  amount  for  which  the  goods  were  there  sold,  being 
£9  15s.  per  cent,  only,  of  the  sum  insured ;  and  the  same  witness  swore, 
that,  by  the  law  of  the  Brazils,  and  other  parts  of  South  America, 
the  vice  consul  is  constituted  general  agent  for  all  absent  owners  of 
goods,  and  (163)  that  the  same  law  authorizes  and  compels  the  vice- 
consul  to  make  sale  of  all  damaged  goods  of  all  absentees,  with  the 
assistance  of  two  British  merchants  as  assessors.  Mansfield,  Ch.  J. 
admitted  this  evidence,  although  Best,  Serjt.,  for  the  defendant,  ob- 
jected to  it,  but  reserving  to  him  liberty  to  move.  Best  also  con- 
tended that,  as  the  plaintiff  had  given  no  evidence  of  any  loss  by  perils 
of  the  sea,  there  was  no  proof  of  that  allegation ;  in  support  of  which 
proposition  he  cited  Rucker  v.  Palsgrave,  ante,  v.  1.  p.  419.  for  that 
the  payment  of  money  into  court  did  not  admit  anything  more  than 
that  the  defendant  owed  £50  per  cent,  for  some  cause  or  other;  but 
Mansfield,  Ch.  J.  held  that  it  admitted  that  the  loss  was  occasioned, 
as  averred,  by  peril  of  the  sea,  and  that  the  only  thing  in  issue  was  the 
amount  of  the  loss :  and  the  jury,  under  his  direction,  found  a  verdict 
for  the  plaintiff  for  £40  4s.  damages,  with  liberty  to  move  to  reduce 
it  to  £20  the  surplus  of  £70  per  cent,  after  deducting  the  £50  paid 
into  court,  if  the  court  should  think  the  evidence  was  not  admis- 
sible. 

Best,  on  a  subsequent  day,  moved  for  a  new  trial  upon  two 
grounds.  First,  that  the  certificate  was  not  admissible  evidence.  Sec- 
ondly, that  although  the  defendant  admitted  damage  occasioned  by 
perils  of  the  sea  to  the  amount  of  £50  per  cent,  he  had  gone  no  further, 
and  that  the  defendant,  if  he  had  not  been  prevented,  would  have  given 
evidence  at  the  trial,  that  other  goods,  sent  by  the  same  vessel,  were  in 
no  respect  damaged,  from  whence  the  jury  might  infer,  that  all  the 
damage  beyond  the  extent  of  £50  per  cent,  was  occasioned,  not  by 
perils  of  the  sea,  but  by  the  improper  stowage  of  the  plaintiffs :  they 
had  not  in  fact  even  proved  that  there  had  been  a  storm,  or  an  hour's 
foul  weather,  during  the  voyage.     [Mansfield,  Ch.  J.  The  payment  of 

437 


CONSULAR  CASES 

money  into  court  admits  the  storms.  Lawrence  and  Heath,  justices. 
No  facts  are  laid  before  the  court,  from  which  we  can  (164)  infer  that 
the  defendant  could  put  himself  in  a  better  situation  if  he  had  the 
advantage  of  a  new  trial]  The  court  granted  a  rule  nisi  upon  the 
admissibility  of  the  evidence  only. 

Shepherd,  Serjt.,  showed  cause.  He  contended,  first,  that  there 
was  a  mistake  in  the  verdict,  which,  instead  of  giving  £70  per  cent, 
damages,  should  have  given  £85  damages;  for  it  was  proved  that  the 
goods  were  damaged  £70  per  cent,  below  the  invoice  price,  and  that 
if  they  had  been  uninjured,  they  would  have  yielded  a  profit  of  £15 
per  cent,  and  the  loss  was  to  be  computed,  not  on  the  invoice  price, 
but  on  the  market  price  of  the  place  at  which  they  had  arrived,  so 
that,  if  the  disputed  evidence  were  inadmissible,  it  would  make  a  dif- 
ference of  £5  per  cent,  only  in  the  amount  of  the  damages.  But  sup- 
posing the  verdict  to  be  now  computed  upon  the  right  principle,  the 
evidence  was  sufficient  to  entitle  the  plaintiff  to  his  verdict.  This  sale 
was  compulsory ;  the  vice-consul,  as  agent  of  the  assured,  could  not 
do  otherwise  than  sell  the  goods.  The  assured,  acting  for  the  bene- 
fit of  the  concern,  could  get  at  nothing  more  than  the  amount  render- 
ed by  the  vice-consul's  account.  The  law  put  the  sale  into  the  hands 
of  that  officer.  The  loss,  therefore,  is  what  the  owner  sustains,  taking 
this  law,  and  the  operation  of  it,  into  the  account.  He  could  get  no 
more  for  the  goods;  therefore  the  loss  is  the  difference  between  the 
sum  received,  and  what  the  goods  were  worth  when  found.  The 
plaintiff's  damage  is  to  that  extent.  Suppose  the  law  had  been,  that 
damaged  goods  should  be  burnt,  although  the  sea  should  have  only 
partially  damaged  them,  yet  the  owner  would  have  had  a  right  to  re- 
cover the  whole  value,  if  in  consequence  of  that  partial  loss  the  law  in- 
terfered and  destroyed  the  whole.  This  is  in  the  plaintiff' 's  favor, 
whether  the  paper  be  evidence  or  not  that  they  have  received  only  the 
proceeds  of  the  sale  according  to  that  account.  (165)  And  unless  the 
contrary  be  shown,  it  must  be  taken  that  they  received  no  more.  The 
defendant  should  have  shown  that  we  did  or  might  have  received 
more.  In  another  point  of  view  the  evidence  is  admissible:  the  vice- 
consul  at  the  Brazils  may  be  considered  as  the  agent  of  all  concerned. 
If  so,  he  is  the  agent  for  the  underwriters;  therefore  his  account 
would  bind  both  parties. 

MANSFIELD,  Ch.  J.  It  was  in  like  manner  argued  in  a  case 
here,  Heath  v.  Burgess,  (a)  upon  the  loss  of  a  trinket  which  cost 
a  very  few  pounds  in  the  East  Indias,  that  the  plaintiff  was  entitled  to 
calculate  the  lo.ss  at  an  advance  of  £70  or  £80  per  cent.     I  held  that 

(a)  C.  B.  Mich,  term,  1809,  and  Hil.  term,  1810. 

438 


CONSULAR  CASES 

against  a  carrier,  as  an  insurer,  he  could  only  calculate  the  value  of 
his  goods  at  the  invoice  price.  The  case  of  an  insurance  was  fully 
agreed  upon  there. 

LAWRENCE,  J.  Surely  it  is  understood,  that  when  the  goods 
are  shipped  upon  an  invoice,  the  loss  is  calculated  upon  that  basis; 
when  otherwise,  recourse  is  had  to  the  produce  at  the  market. 

MANSFIELD,  Ch.  J.  The  only  question  is,  whether  this  loss 
should  not  have  been  proved  by  ordinary  evidence.  They  should  have 
had  somebody  to  attend  at  the  sale,  who  might  have  been  a  witness. 

Best,  Serjt.,  contra.  It  does  not  appear  that  the  law  of  the 
Brazils  gives  effect  or  authority  to  the  certificate  of  the  vice-consul. 
Custom-house  officers  are  bound  by  law  to  attend  clearances,  etc.,  but 
their  certificate  does  not  prove  any  facts.  It  does  not  appear  the  vice- 
consul  was  sworn.  There  is  no  instance  of  such  evidence  being  ad- 
mitted.    Judgments  are  pronounced  in  the  presence  of  both  parties. 

(166)  MANSFIELD,  Ch.  J.  I  thought  at  the  trial  it  was  very 
difficult  to  bring  this  within  any  head  of  evidence.  It  was  somewhat 
analogous  to  the  proceedings  of  courts  and  other  public  functionaries : 
but  I  know  of  no  instances  of  such  as  this  being  received.  I  dare  say 
it  would  be  evidence  in  any  other  country.  It  came  nearest  to  the 
case  of  judgments  in  foreign  courts.  But  we  receive  judgments  under 
the  seals  of  the  courts.  The  vice-consul  is  no  judicial  officer.  He 
acts  under  a  wise  regulation  to  prevent  the  improper  disposition  of 
damaged  goods.  They  are  put  into  warehouses  appropriated  to  them 
by  government.  The  vice-consul  must  preside  at  the  auction.  There 
is  no  rule  in  the  English  law  which  makes  his  certificate  evidence. 
He  has  been  supposed  to  be  an  agent,  and  he  is,  to  some  purposes. 
So  is  an  auctioneer  in  this  country ;  nevertheless  his  certificate  is  not 
evidence  in  a  court  of  justice,  but  what  was  done  at  the  auction  must 
be  proved.  The  business  of  the  vice-consul  is  to  see  a  fair  sale.  It  is 
going  much  farther  to  say  that  his  certificate  shall  bind  the  parties. 
Anybody  present  might  have  proved  the  facts.  The  chirograph  of 
fines  here  proves  itself,  but  the  endorsement  of  the  proclamation  of 
the  fine  must  be  proved  by  a  compared  copy  of  the  record. 

Rule  absolute  to  reduce  the  damages  to  £70  per  cent. 
WALTER  D.  WALLET,  THE,  (1895.  U.  S.— Great  Britain) 

66  Fed.  Rep.  1011. 
Toulmin,  District  Court. 

(Extract)     The  British  consul  does  not  petition  the  court  to  take 

439 


CONSULAR  CASES 

jurisdiction  of  the  case;  but,  on  the  contrary,  requests  the  court  to 

decline 

[So  on  ground  of  coniity  ease  throwTi  out, — Ed.] 

WEDDERBURN.  SUCCESSION  OF,  (1841,  U.  S.) 

1  K.  263. 

Garland,  Supreme  Court  of  Louisiana, 

(Extract)  We  now  take  the  case  upon  the  petition  and  evidence, 
as  acted  upon  by  the  judge  of  the  court  of  probates,  A  copy  of  the 
will  of  Alexander  Wedderburn  is  presented ;  it  is  certified  by  persons 
stating  themselves  to  hold  official  capacities,  and  to  be  authorized  to 
act  in  the  premises.  They  show  the  probate  of  the  will  in  the  preroga- 
tive court  of  the  Province  of  Cantebury,  in  London,  by  its  records ;  and 
the  consul  of  the  United  States  in  London,  certifies  to  the  official  char- 
acter of  these  persons  and  that  full  faith  and  credit  are  due  and  ought 
to  be  given  to  their  acts  '  in  judicature  and  thereout. '  This  certificate 
is  in  conformity  to  the  act  of  the  legislature  passed  in  1837,  and  is 
legal  evidence  of  the  attributes,  official  station,  and  authority  of  the 
persons  certifying,  1  BuUard  &  Curry's  Digest  822.  We  do  not 
know  in  what  way  these  documents  can  be  made  more  authentic,  and 
the  certificates  appended  to  them,  show  that  they  would  be  received 
as  evidence  in  the  courts  of  Great  Britain. 

WEIBERG  v.  THE  ST,  OLOFF,  (1790,  U,  S.— Sweden) 

2  Pet.  Ad.  428;   Fed.  Cases   17,357. 

Per  Curiam,  District  Court. 

On  the  19th  of  November,  1790,  a  libel  was  filed  in  this  court 
by  Mr.  Bankson  one  of  the  proctors  of  the  court,  in  behalf  of  Errick 
Wei  berg  and  Nicholas  Casterius,  two  mariners  belonging  to  the  brig 
St.  Oloff,  a  Swedish  vessel  under  the  command  of  Jonas  Holmstedt. 

The  complaint  states,  that  the  libellants  had  entered  on  board 
this  vessel  about  the  27th  day  of  December  in  the  year  1789,  at  Cadiz, 
in  the  kingdom  of  Spain,  on  a  voyage  from  thence  to  Philadelphia 
and  back  again  to  Cadiz ;  for  the  wages  of  five  Spanish  milled  dollars 
per  month.  That  the  captain  had,  during  the  voyage,  and  since  her 
arrival  in  this  port,  treated  the  libellants  with  uncommon  cruelty,  in- 
somuch that  it  was  dangerous  for  them  to  remain  any  longer  in  his 
employ ;  that  application  had  been  made  in  their  behalf  to  Mr.  Hell- 
steadt.  the  Swedish  consul,  resident  in  Philadelphia,  who  refused  to 
grant  them  any  redress.     Whereupon,  they  pray  that  their  wages  may 

440 


CONSULAR  CASES 

be  paid,  and  themselves  be  discharged  from  any  further  continuance 
on  board  the  said  brig. 

In  consequence  of  this  libel,  a  citation  was  issued  calling  upon 
Jonas  Holmstedt  and  all  persons  (429)  concerned,  to  appear  and 
make  their  objections,  if  any  they  have,  why  a  decree  should  not 
pass  according  to  the  prayer  of  the  libellants. 

On  the  morning  of  the  twentieth,  the  court  met  according  to  ad- 
journment, when  the  marshal  made  return  of  the  citation,  certifying 
that  the  same  had  been  duly  served.  The  marshal's  deputy  at  the 
same  time  informed  the  court,  that  he  had  first  waited  on  Mr.  Hell- 
stead,  the  Swedish  consul  resident  here,  and  informed  him  that  he 
was  going  to  serve  the  citation  upon  captain  Holmstedt,  and  showed 
the  copy  of  the  writ ;  after  which  he  went  on  board  and  presented  it 
to  the  captain,  who  absolutely  refused  to  receive  it,  saying,  in  an 
angry  manner,  that  he  was  on  Swedish  ground :  that  he  then  left  the 
citation  on  the  binnacle,  and  came  away. 

Soon  after  this  Mr.  Hellsteadt  the  consul  came  into  court,  and 
after  making  some  apology  for  the  captain's  behaviour,  on  account  of 
his  not  understanding  the  English  language,  said,  that  by  the  laws 
of  Sweden,  the  captain  is  vested  with  supreme  command  over  his  crew, 
who  has  a  right  to  punish  them  according  to  his  own  discretion,  to 
any  extent,  short  of  murder  ,  or  breaking  of  limbs ;  and  that  he  neither 
is,  nor  can  be,  answerable  to  any  foreign  jurisdiction  whatever  for 
the  exercise  of  this  power;  being  accountable  to  the  Swedish  courts 
of  judicature  alone,  on  the  return  of  the  ship;  that  it  was  the  cap- 
tain's duty  to  refuse  obedience  to  the  citation  issued  from  this  court, 
or  to  do  anything  that  would  seem  to  acknowledge  its  jurisdiction 
in  a  question  between  him  and  any  of  his  crew;  and  that  by  the 
treaty  between  the  United  States  and  (430)  the  court  of  Sweden,  it  is 
stipulated  that  the  subjects  of  Sweden  shall  enjoy  the  same  priv- 
ileges in  the  ports  of  the  United  States  that  have  been  or  may  be 
granted  to  the  most  favored  nation  in  amity  with  them.  Inferring, 
that  as  by  the  convention  with  France,  the  French  consuls  in  the 
ports  of  the  United  States  have  an  exclusive  jurisdiction  in  the  ad- 
justment of  disputes  between  the  captains  and  their  mariners,  so  ought 
the  regulations  and  discipline  on  board  of  Swedish  vessels,  to  be 
governed  by  the  Swedish  laws  and  customs,  without  the  interference 
of  the  courts  of  the  United  States. 

The  judge  said,  that  he  thought  that  the  citation  should  have 
been  attended  to  with  more  respect.  However,  he  would  take  the  ob- 
jection to  the  jurisdiction  of  the  court  under  advisement,  and  ex- 
amine the  treaties  referred  to. 

Errick  Weiberg  one  of  the  libeUants,  then  applied  to  the  judge, 

441 


CONSULAR  CASES 

suggesting  that  he  was  apprehensive  of  ill-usage  if  he  should  remain 
in  the  power  of  the  captain.  But  the  judge  directed  him  to  continue 
his  duty  on  board ;  telling  hini,  that  he  was  under  the  protection  of 
the  court,  and  believed  there  was  no  danger  of  the  captain's  using 
him  ill. 

As  yet  no  process  had  issued,  except  the  citation ;  but  as  the 
jurisdiction  of  the  court  had  been  thus  expressly  denied,  the  proctor 
for  the  libellants  moved  on  the  tAventy-second  to  amend  his  libel, 
and  prayed  that  process  might  be  awarded  and  issued  against  the 
brig  St.  Oloff,  her  tackle,  etc.,  to  abide  the  decree  of  this  court  in 
the  cause  aforesaid,  which  was  ordered;  an  amended  libel  brought 
(431)  forward,  and  filed,  and  a  writ  of  attachment  issued  accordingly. 

On  the  twenty-third,  the  court  ])eing  met,  the  proctor  for  the 
libellants  complained  that,  notwithstanding  what  had  been  said  on 
Saturday,  the  captain  had  seized  upon  Erriek  Weiberg,  as  soon  as  he 
came  on  board  from  att(Miding  on  tlie  court,  had  him  put  in  heavy 
irons  and  confined  him  in  the  hold  of  the  vessel.  Weiberg  was  then 
examined,  and  testified  to  the  cruel  treatment  he  had  received,  and  the 
irons  and  chains  were  brought  in  and  laid  before  the  judge. 

On  the  24th  the  Rev.  ^Mr.  Collins,  the  Swedish  missmnary  resident 
in  Philadelphia,  appeared  in  court,  and  presented  a  letter  signed  by 
Jonas  Holmstedt.  in  which  he  says,  that  "although  he  could  not 
acknowledge  the  jurisdiction  of  the  court  in  the  cause  brought  be- 
fore it  by  his  seamen,  as  this  would  be  repugnant  to  the  allegiance  he 
owed  to  the  king  of  Sweden,  yet  no  affront  was  intended  to  the  court." 
At  the  same  time  another  letter  was  handed  to  the  judge,  signed 
Charles  Hellsteadt,  Swedish  consul,  in  which  he  says  ,  that  he  is 
responsible  in  a  public  line  to  the  king  of  Sweden ;  that  he  had  al- 
ready remonstrated  before  the  court  for  interfering  in  the  dispute 
between  Captain  Holmstedt  and  two  of  his  seamen.  And  that  he  by 
this  letter,  protested  against  any  decision  that  should  be  made  for  or 
against  the  parties,  as  the  complaint  ought  to  have  been  made  to  him, 
as  consul,  agreeably  to  the  treaty  now  in  force,  between  Sweden  and 
North  America. 

The  judge  considered  the  cruel  imprisonment  of  the  libellant, 
whilst  suing  for  justice,  and  under  (432)  the  protection  of  the  law,  us 
a  manifest  contempt  of  the  court.  He  ordered  all  proceedings  re- 
specting the  libel  to  be  laid  aside,  until  this  contempt  should  be  ex- 
amined into,  and  the  rights  of  humanity  vindicated,  which  he  said 
were  paramount  to  all  treaties. 

The  court  was  thereupon  adjourned  for  an  hour  to  meet  at  the 
State  House,  the  court  having  hitherto  sat  at  the  admiralty  office. 
The  attorney  of  the  United  States  for  the  district  of  Pennsylvania, 

442 


CONSULAR  CASES 

was  called  upon  for  his  opinion,  who  attended,  together  with  several 
gentlemen  of  the  bar,  and  also  some  Swedish  gentlemen,  and  others 
who  had  heard  of  the  matter. 

After  examining  the  testimony  with  respect  to  captain  Holm- 
stedt's  conduct,  Mr.  Lewis,  Mr.  Bankson,  and  Mr.  Sergeant,  united 
in  opinion,  that  the  treaty  with  Sweden,  as  to  the  point  in  question, 
could  not  be  so  explained  as  to  give  the  captain  the  exclusive  juris- 
diction he  claims.  That  the  words  "the  most  favored  nation,"  used 
in  the  treaty  with  Sweden,  are  the  words  used  in  all  the  treaties  be- 
tween the  United  States  and  foreign  nations  in  amity  with  them, 
and  were  never  interpreted  to  found  a  jurisdiction  exclusive  of,  or 
inconsistent  with,  the  laws  of  the  United  States  in  our  own  ports. 
That  such  a  right  was  never  pretended  in  constructions  of  the  general 
treaty  with  France ;  but  that  for  vesting  such  a  jurisdiction,  a  special 
convention  was  thought  necessary,  the  terms  of  which  have  been 
specifically  designated,  and  not  left  to  interferences,  or  general  con- 
struction. 

That  as  the  captain's  conduct,  in  the  instance  before  the  court, 
could  not  be  supported  by  his  exposition  of  the  treaty,  neither  could 
he  be  justified  (433)  in  refusing  obedience  to  the  process  of  the  court. 
And  that  this,  together  with  the  cruel  treatment  of  the  libellant, 
whilst  under  the  protection,  of  the  court,  was,  and  ought  to  be,  deemed 
a  contempt.  Adding,  however,  that  some  allowance  might  reasonably 
be  made,  in  alleviation,  for  the  captain's  being  unacquainted  with 
the  language,  and  ignorant  of  the  laws  and  customs  of  our  country. 

The  judge  having  attended  to  these  arguments,  observed,  that  the 
admitting  a  jurisdiction  exclusive  of  the  laws  of  the  United  States, 
was  a  matter  of  too  serious  import  to  be  rested  on  implication  alone. 
That  the  words  referred  to  in  the  treaty  with  Sweden  could  not  by 
any  construction  be  supposed  to  embrace  all  the  objects  comprehended 
in  the  special  convention  made  with  France.  That  let  the  question 
of  jurisdiction  be  what  it  may,  there  could  be  no  necessity  for  the  con- 
tempt, which  captain  Holmstedt  had  thrown  upon  the  court,  or  of  the 
violence  with  which  the  mariner  had  been  treated.  That  a  citation 
was  the  most  moderate  and  unexceptionable  process  known,  for 
bringing  a  matter  before  the  court;  after  which,  any  plea  to  the 
jurisdiction  might  have  been  discussed,  and  would  have  been  con- 
sidered; but  that  his  unprecedented  conduct  violated  not  only  the 
rules  of  law,  but  even  of  common  decorum.  That  he  could  not  con- 
sistently with  his  duty,  but  consider  the  absolute  refusal  of  answering 
to  the  citation,  and  the  subsequent  treatment  of  the  libellant,  whilst 
under  the  protection  of  the  court,  as  a  contempt,  which  ought  not  to 
pass  unnoticed.     That  as  to  the  amount  of  any  fine  that  might  be 


CONSULAR  CASES 

laid  on  this  occasion,  he  was  willing  to  give  the  apology  that  had  been 
made  its  full  weight,  (434)  but  that  he  was  firm  in  asserting  the 
rights  and  authority  of  this  court  in  the  matter  now  before  it. 

JUDGMENT.  That  Jonas  Holmstedt  has  been  guilty  of  a  con- 
tempt, in  refusing  to  obey  the  process  of  the  court,  and  in  confining 
in  irons  a  suitor  whilst  imder  the  protection  of  the  laws,  and  applying 
for  the  justice  of  the  country.  For  which  offence  I  award  that  he  pay 
a  fine  of  tw^enty  dollars,  with  the  costs  of  prosecution,  and  stand 
committed  until  this  sentence  is  complied  with." 

On  the  25th,  the  court  met  on  the  business  of  the  libel.  Mr. 
Collin,  the  Swedish  minister,  presented  a  letter  to  the  judge,  signed 
Jonas  Holmstedt,  in  which  he  says,  that  he  is  willing  to  answer  any 
questions  respecting  the  prosecution  of  this  libel  that  may  be  asked, 
but  cannot  enter  into  any  defence  of  his  cause,  as  this  would  be  a 
violation  of  the  laws  of  Sweden,  which  he  is,  on  his  allegiance  bound 
to  obey.  And  then  quotes  a  passage  from  the  Swedish  maritime  law, 
directing  that  ''if  any  disputes  on  the  sea  or  on  shore  should  arise 
between  the  captain  and  his  crew,  the  parties  are  not  permitted  to  sue 
for  redress  in  a  place  subject  to  a  foreign  government,"  etc.,  etc. 
But  these  letters  were  not  noticed,  inasmuch  as  they  uniformly  ex- 
pressed a  denial  of  the  jurisdiction  of  the  court. 

Mr.  Soderstrom,  the  Swedish  consul,  resident  in  Boston,  being 
here,  addressed  the  court  and  said  -.  That  he  was  very  sorry  he  had 
not  sooner  heard  of  this  disagreeable  business,  which  he  would  have 
endeavored  to  prevent  by  all  the  means  in  his  power.  That  he  could 
not  justify  the  conduct  of  captain  Holmstedt  with  respect  to  con- 
tempt, but  as  judgment  had  already  past,  the  error  was  irretrievable : 
(435)  as  to  the  libel  now  depending,  he  prayed  the  judge  to  indulge 
him  with  a  little  time  whilst  he  endeavored  to  accommodate  matters 
between  the  parties,  by  proposing  that  the  libellants  should  be  dis- 
charged from  the  brig  St.  Oloff,  and  put  on  board  some  other  vessel 
bound  for  Sweden,  and  that  the  wages  due  to  them  should  be  paid 
over  to  him  (Mr.  Soderstrom),  in  trust  for  the  mariners,  until  the 
dispute  might  be  determined  in  Sweden  by  a  court  of  that  country. 
The  judge  approving  of  this  proposal,  the  court  adjourned  till  further 
notice. 

On  the  27th,  Mr.  Bankson  received  a  letter  from  the  Rev.  Mr. 
Collin,  informing  that  the  proposed  accommodation  had  proved  un- 
successful, as  consul  Hellsteadt,  "after  the  unlimited  protest  he  had 
before  made,  could  not  permit  the  seamen  to  be  received  on  board  of 
any  other  vessel. ' ' 

444 


CONSULAR  CASES 

The  cause  then  proceeded  in  course ;  the  witnesses  were  examined, 
and  the  testimony  reduced  to  writing. 

On  the  29th,  a  further  progress  was  made  in  the  cause,  and  some 
points  of  form  adjusted. 

And  on  the  30th,  after  proclamation  made,  the  judge  gave  his 
final  decree,  in  these  words : — 

I  have  duly  considered  the  libel  filed  in  this  cause,  and  have 
heard  and  carefully  attended  to  the  testimony  of  the  witnesses  pro- 
duced respecting  the  same;  and  I  find,  that  the  libellants  entered  on 
board  the  brig  St.  Oloff,  Jonas  Holmstedt,  master,  in  December  1789, 
in  the  port  of  Cadiz,  in  the  kingdom  of  Spain ;  that  no  articles  or  writ- 
ten contract  (436)  whatever  were  presented  to  the  libellants  by  the 
captain,  or  any  other  person,  to  engage  them  in  the  service  of  this 
vessel,  or  for  any  designated  voyage,  except  that  they  were  told  by  the 
captain  that  they  were  going  to  Philadelphia  and  back  again  to 
Cadiz,  where  they  should  be  paid  off,  at  the  rate  of  five  dollars  per 
month,  and  there  discharged.  That  after  their  arrival  at  Philadel- 
phia, the  captain,  without  any  new  agreement  whatever,  undertook 
another  voyage  to  St.  Andero  in  Spain  and  back  again  to  the  port 
of  Philadelphia,  with  the  libellants  on  board,  where  the  vessel  now  is. 
It  also  appears  that  captain  Holmstedt  had  treated  the  libellants  with 
uncommon  severity  and  cruelty,  especially  Weiberg,  whom  he  had 
confined  in  jail  six  days  in  Philadelphia,  before  their  sailing  for  St. 
Andero,  and  as  soon  as  he  was  taken  on  board  again,  beat  him  and 
otherwise  abused  him,  so  that  he  lay  three  days  disabled  from  doing 
any  duty.  That  after  their  return  to  this  port  the  last  time,  the 
libellants  made  application  to  a  proctor  of  this  court,  to  sue  for  the 
justice  of  the  country  in  their  behalf.  That  in  prosecuting  this  busi- 
ness, they  had  been  absent  from  the  brig  about  three  hours,  and  on 
their  return  to  the  vessel,  the  captain  caused  them  both  to  be  pinioned 
and  confined ;  threatening  them  with  a  drawn  cutlass  and  denouncing 
vengenance  against  them.  And  that  afterwards,  whilst  this  cause 
was  before  the  court  and  during  an  adjournment  thereof,  the  cap- 
tain caused  Weiberg,  one  of  the  libellants,  to  be  laden  with  irons  and 
chains,  and  confined  on  board  the  brig. 

Under  these  circumstances,  I  am  of  opinion,  First,  that  the 
deviation  to  the  port  of  St.  Andero  (437)  in  Spain,  was  such  an  alter- 
ation of  the  voyage,  as  might  justify  the  mariner  in  demanding  his 
wages.  And  secondly,  that  captain  Holmstedt 's  conduct  with  regard 
to  the  libellants,  hath  been  so  cruel  and  unwarrantable  by  the  mari- 
time law,  as  would  of  itself  have  dissolved  the  contract — The  rights 

445 


CONSULAR  CASES 

of  hmnanitj'  being  superior  to  the  specific  laws  and  customs  of  any 
nation : 

Whereupon,  I  adjudge  and  decree,  that  Errick  Weiberg  and 
Nicholas  Casterius  be  discharged  from  any  further  services  on  board 
the  brig  St.  Oloff ;  and  that  they  have  and  receive  the  sum  of  eighty- 
six  dollars  and  twenty  cents,  in  full  of  the  wages  respectively  due  to 
them.  That  is  to  say,  to  Errick  Weiberg  the  sum  of  fifty-three  dol- 
lars and  eighty -six  and  two-thirds  cents,  and  to  Nicholas  Casterius  the 
sum  of  thirty  two  dollars  and  thirty-three  and  a  third  cents.  And  I 
do  further  decree,  that  the  brig  St.  Oloff,  with  her  tackle,  apparel  and 
furniture,  or  such  parts  thereof  as  may  be  necessary  to  satisfy  this 
judgment,  together  with  the  charges  and  costs  of  suit,  be  sold  by  the 
marshal  of  this  district,  according  to  law  and  custom,  for  the  pur- 
poses aforesaid.^ 

WELHAVEN,  THE,  (1892,  U.  S.— Norway) 
55  Fed.  Rep.  80. 
Toulmin,  District  Court. 

[Court  refused  to  take  jurisdiction  in  the  case  of  an  American 
seaman  who  claimed  he  shipped  on  a  Norwegian  ship  for  a  trip  be- 
tween American  ports  and  held  that  the  Norwegian  consul  had  juris- 
diction imder  the  treaty. — Ed.] 

WELSH  V.  HILL,  (1807,  U.  S.— Cuba) 

2  Johns.  373. 

Hopkins,  Supreme  Court,  New  York. 

Motion  for  commission — Affidavit. 

Mr.  Hopkins  moved  for  a  commission  in  this  cause,  to  take  the 
depositions  of  certain  witnesses  residing  in  Havana.  The  affidavit 
on  which  the  motion  was  founded  was  made  by  the  plaintiff,  who  re- 
sided in  Havana,  before  the  commercial  and  naval  agent  of  the  United 
States,  resident  at  Havana,  in  the  island  of  Cuba. 

Mr.  Henry,  contra,  objected  that  the  affidavit  had  not  been  taken 
before  a  proper  magistrate,  and  could  not,  therefore,  be  read  in  this 
court. 

PER  CURIAM.     The  affidavit  is  admissible  for  the  purpose  of 
the  present  motion. 
Rule  granted. 
Cited  in  47  Barb.,  119. 

'  In  the  case  of  Willendson  vs.  the  Forsoket,  vol.  I,  page  197,  the  practice  of 
the  court  as  to  foreign  seamen,  is  fully  explained, 

446 


CONSULAR  CASES 

W.  L.  WHITE,  THE,  (1885,  U.  S.) 
25  Fed.  Rep.  503. 
Brown,  District  Court. 

[Discharge  of  a  seaman  under  sect.  4,583  of  revised  statutes,  as 
amended  in  1884. — Ed.] 

WILBOR  V.  UNITED  STATES,  (1902,  U.  S.) 

38  Ct.  CI.  1. 

Howry,  Court  of  Claims. 

[Vice-consul  claims  half  of  consul-general's  salary  while  he  was 
absent. 

Court  decides  that  by  waiting  until  death  of  consul-general  and 
allowing  settlement  to  be  made  vice-consul  is  presumed  to  have  made 
an  agreement  with  consul-general. — Ed.] 

WILCOX  V.  LUCO,  (1896,  U.  S.) 

45  Pac.  676. 

McFarland,  Supreme  Court  of  California. 

[Consul  cannot  waive  his  right  to  trial  by  federal  courts,  and 
state  courts  have,  ever  since  the  act  of  Feb.  18,  1875,  no  jurisdiction 
in  cases  affecting  consuls.  ~ 

A  rehearing  granted  and  the  opinion  reversed,  see  50  Pac.  Rep. 
758.— Ed.] 

WILCOX  V.  LUCO,  (1897,  U.  S.) 

118  Cal.  639;  50  Pac.  758. 

Harrison,  Supreme  Court  of  California, 

[Since  the  act  of  Feb.  18,  1875,  state  courts  have  concurrent  juris- 
diction in  suits  affecting  consuls.  The  jurisdiction  of  the  state  court 
cannot  take  away  the  jurisdiction  of  the  local  court,  and  consul  may 
have  his  case  reviewed  by  latter  court,  unless  he  waives  this  right,  and 
if  he  suffers  default  he  likewise  waives  this  right. 

Four  judges  concurred  and  McFarland  (v.  45  Pac.  676)  dissented. 
—Ed.] 

WILDENHUS'S  CASE,^  (1886,  U.  S.— Belgium) 
120  U.  S.  1;  7  Sup.  Ct.  Rep.  385. 
Waite,  Supreme  Court. 

Appeal  from  the  circuit  court  of  the  United  States  for  the  district 
of  New  Jersey, 

^Affirming  28  Fed.  Eep.  924. 

447 


CONSULAR  CASES 

On  habeas  corpus.  Judgment  below  dismissing  the  writ.  Peti- 
tioner appeals. 

F.  R.  Coudert  and  Edward  K.  Jones,  for  appellants,  Mali,  consul 
of  his  majesty  the  king  of  the  Belgians,  and  others.  C.  H.  Winfield, 
for  appellee,  keeper  of  the  common  jail  of  Hudson  county,  New 
Jersey. 

"WAITE,  C.  J.  This  appeal  brings  up  an  application  made  to 
the  circuit  court  of  the  United  States  for  the  district  of  New  Jersey, 
by  Charles  Mali,  the  "consul  of  his  majesty  the  king  of  the  Belgians, 
for  the  states  of  New  York  and  New  Jersey,  in  the  United  States," 
for  himself,  as  such  consul,  "and  in  behalf  of  one  Joseph  Wildenhus, 
one  Gionviennie  Gobnbosich,  and  John  J.  Ostenmeyer,"  for  the  re- 
lease, upon  a  ^v^it  of  habeas  corpus,  of  "Wildenhus,  Gobnbosich,  and 
Ostenmeyer  from  the  custody  of  the  keeper  of  the  common  jail  of 
Hudson  county,  New  Jersey,  and  their  delivery  to  the  consul,  "to  be 
dealt  with  according  to  the  law  of  Belgium."  The  facts  on  which 
the  application  rests  are  thus  stated  in  the  petition  for  the  writ: 

"Second.  That  on  or  about  the  sixth  day  of  October,  1886,  on 
board  the  Belgian  steamship  Noordland,  there  occurred  an  affray  be- 
tween the  said  Joseph  Wildenhus  and  one  Fijens,  wherein  and  where- 
by it  is  charged  that  the  said  Wildenhus  stabbed  with  a  knife  and  in- 
flicted upon  the  said  Fijens  a  mortal  wound,  of  which  he  afterwards 
died. 

"Third.  That  the  said  Wildenhus  is  a  subject  of  the  kingdom 
of  Belgium,  and  has  his  domicile  therein,  and  is  one  of  the  crew  of 
the  said  steamship  Noordland,  and  was  such  when  the  said  affray  oc- 
curred. 

"Fourth.  That  the  said  Fijens  was  also  a  subject  of  Belgium, 
and  had  his  domicile  and  residence  therein,  and  at  the  time  of  the  said 
affray,  as  well  as  at  the  time  of  his  subsequent  death,  was  one  of  the 
crew  of  the  said  steamship. 

"Fifth.  That,  at  the  time  said  affray  occurred,  the  said  steam- 
ship Noordland  was  lying  moored  at  the  dock  of  the  port  of  Jersey 
City,  in  said  state  of  New  Jersey. 

"Sixth.  That  the  said  affray  occurred  and  ended  wholly  below 
the  deck  of  the  said  steamship,  and  that  the  tranquillity  of  the  said 
port  of  Jersey  City  was  in  nowise  disturbed  or  endangered  thereby. 

"Seventh.  That  said  affray  occurred  in  the  presence  of  several 
witnesses,  all  of  whom  were  and  still  are  of  the  crew  of  the  said  vessel, 
and  that  no  other  person  or  persons  except  those  of  the  crew  of  said 
vessel  were  present  or  nearby. 

"Eighth.     Your    petitioner   therefore    respectfully   shows   unto 

448 


CONSULAR  CASES 

this  honorable  court  that  the  said  affray  occurred  outside  of  the  juris- 
diction of  the  said  state  of  New  Jersey. 

"Ninth.  But,  notwithstanding  the  foregoing  facts,  your  peti- 
tioner respectfully  further  shows  that  the  police  authorities  of  Jersey 
City,  in  said  state  of  New  Jersey,  have  arrested  the  said  Joseph 
"Wildenhus,  and  also  the  said  Gionviennie  Gobnbosich  and  John  J. 
Ostenmeyer,  of  the  crew  of  the  said  vessel,  (one  of  whom  is  a  quarter- 
master thereof,)  and  that  said  Joseph  Wildenhus  has  been  committed 
by  a  police  magistrate,  acting  under  the  authority  of  the  said  state, 
to  the  common  jail  of  the  county  of  Hudson,  on  a  charge  of  an  indict- 
able offense  under  the  laws  of  the  said  state  of  New  Jersey,  and  is 
now  held  in  confinement  by  the  keeper  of  the  said  jail,  and  that  the 
others  of  the  said  crew,  arrested  as  aforesaid,  are  also  detained  in  cus- 
tody and  confinement  as  witnesses  to  testify  in  such  proceedings  as 
may  hereafter  be  had  against  the  said  Wildenhus. ' ' 

Articles  8,  9,  and  10  of  a  royal  decree  of  the  king  of  the  Belgians, 
made  on  the  eleventh  of  March,  1857,  relating  to  consuls  and  consular 
jurisdiction,  are  as  follows : 

"Art.  8.  Our  consuls  have  the  right  of  discipline  on  Belgian 
merchant  vessels  in  all  the  ports  and  harbors  of  their  district.  In 
matters  of  offenses  and  crimes  they  shall  make  the  examination  con- 
formably to  the  instructions  of  the  disciplinary  and  penal  code  of  the 
merchant  service  .  They  shall  claim,  according  to  the  terms  of  the 
conventions  and  laws  in  vigor,  the  assistance  of  the  local  authorities 
for  the  arrival  and  putting  on  board  of  deserting  seamen. 

"Art.  9.  Except  in  case  the  peace  of  the  port  shall  have  been 
broken  by  the  event,  the  consul  shall  object  to  all  attempts  that  the 
local  authority  might  make  to  act  in  relation  to  crimes  or  offenses 
committed  on  board  of  a  Belgian  vessel  by  a  man  of  the  crew  on 
another  man  of  the  same  crew,  or  of  the  crew  of  another  Belgian  ves- 
sel .  He  shall  take  the  proper  steps  to  obtain  that  the  cognizance  of 
the  case  be  turned  over  to  him,  in  order  that  it  be  ultimately  tried 
under  the  Belgian  laws. 

"Art.  10.  When  men  belonging  to  the  crew  of  a  Belgian  vessel 
shall  be  guilty  of  offenses  or  crimes  out  of  the  ship,  or  even  on  board 
the  ship,  against  persons  not  of  the  crew,  the  consul  shall,  if  the 
local  authority  arrests  or  prosecutes  them,  take  the  necessary  steps 
to  have  the  Belgians  so  arrested  treated  with  humanity,  defended, 
and  tried  impartially-" 

The  application  in  this  case  was  made  under  the  authority  of 
these  articles. 

Article  11  of  a  convention  between  the  United  States  and  Bel- 
gium "concerning  the  rights  ,  privileges,  and  immunities  of  consular 

449 


CONSULAK  CASES 

officers,"  eonehided  March  9,  1880,  and  proclaimed  by  the  president 
of  the  United  States,  March  1,  1881,  (21  St.  123,)  is  as  follows: 
*'The  respective  consuls  general,  consuls,  vice-consuls,  and  con- 
sular agents  shall  have  exclusive  charge  of  the  internal  order  of  the 
merchant  vessels  of  their  nation,  and  shall  alone  take  cognizance 
of  all  differences  which  may  arise,  either  at  sea  or  in  port,  between  the 
captains,  officers,  and  crews,  without  exception,  particularly  with 
reference  to  the  adjustment  of  wages  and  the  execution  of  contracts. 
The  local  authorities  shall  not  interfere,  except  when  the  disorder 
that  has  arisen  is  of  such  a  nature  as  to  disturb  tranquillity  and 
public  order  on  shore  or  in  the  port,  or  when  a  person  of  the  country, 
or  not  belonging  to  the  crew,  shall  be  concerned  therein.  In  all 
other  cases,  the  aforesaid  authorities  shall  confine  themselves  to  lend- 
ing aid  to  the  consuls  and  vice-consuls  or  consular  agents,  if  they  are 
requested  by  them  to  do  so,  in  causing  the  arrest  and  imprisonment 
of  any  person  whose  name  is  inscribed  on  the  crew  list,  whenever,  for 
any  cause,  the  said  officers  shall  think  proper. ' ' 

The  claim  of  the  consul  is  that,  by  the  law  of  nations  and  the 
provisions  of  this  treaty,  the  offense  with  which  Wildenhus  has  been 
charged  is  ' '  solely  cognizable  by  the  authority  of  the  laws  of  the  king- 
dom of  Belgium,"  and  that  the  state  of  New  Jersey  is  without  juris- 
diction in  the  premises.  The  circuit  court  refused  to  deliver  the 
prisoners  to  the  consul,  and  remanded  them  to  the  custody  of  the 
jailer.  28  Fed.  Rep.  924.  To  reverse  that  decision  this  appeal  was 
taken. 

By  sections  751  and  753  of  the  Revised  Statutes  the  courts  of 
the  United  States  have  power  to  issue  writs  of  habeas  corpus  which 
shall  extend  to  prisoners  in  jail  when  they  are  in  "custody  in  viola- 
tion of  the  constitution  or  a  law  or  treaty  of  the  United  States,"  and 
the  question  we  have  to  consider  is  whether  these  prisoners  are  held 
in  violation  of  the  provisions  of  the  existing  treaty  between  the  United 
States  and  Belgium. 

It  is  part  of  the  law  of  civilized  nations  that,  when  a  merchant 
vessel  of  one  country  enters  the  ports  of  another  for  the  purposes  of 
trade,  it  subjects  itself  to  the  law  of  the  place  to  which  it  goes,  unless, 
by  treaty  or  otherwise,  the  two  countries  have  come  to  some  different 
luiderstanding  or  agreement;  for,  as  was  said  by  Chief  Justice  Mar- 
shall in  The  Exchange,  7  Cranch,  144:  "It  would  be  obviously  incon- 
venient and  dangerous  to  society,  and  would  subject  the  laws  to  con- 
tinual infraction,  and  the  government  to  degradation,  if  such 
•  •  *  merchants  did  not  owe  temporary  and  local  allegiance,  and 
were  not  amendable  to  the  jurisdiction  of  the  country."  United 
States  v.  Diekelman,  92  U.  S.  520;  1  Phillim.  Int.  Law,  (3d  Ed.)  483, 

450 


CONSULAR  CASES 

§  cecli.;  Twiss,  Law  Nat.  229,  §  159;  Creasy,  Int.  Law,  167,  §  176; 
Halleck,  Int.  Law,  (1st  Ed.)  17].  And  the  English  judges  have  uni- 
formly recognized  the  rights  of  the  courts  of  the  country  of  which  the 
port  is  part  to  punish  crimes  committed  by  one  foreigner  on  another 
in  a  foreign  merchant  ship.  Regina  v.  Cunningham,  Bell,  Cr.  Cas.  72 ; 
S.  C.  8  Cox,  Crim.  Cas.  104;  Regina  v.  Anderson,  11  Cox,  Crim.  Cas. 
198,  204;  S.  C.  L.  R.  1.  Cr.  Cas.  161,  165;  Regina  v.  Keyn,  13  Cox, 
Crim.  Cas.  403,  486,  525;  S.  C.  2  Exch.  Div.  63,  161,  213.  As  the 
owner  has  voluntarily  taken  his  vessel,  for  his  own  private  purposes, 
to  a  place  within  the  dominion  of  a  government  other  than  his  own, 
and  from  which  he  seeks  protection  during  his  stay,  he  owes  that  gov- 
ernment such  allegiance,  for  the  time  being,  as  is  due  for  the  pro- 
tection to  which  he  becomes  entitled. 

From  experience,  however,  it  was  found  long  ago  that  it  would 
be  beneficial  to  commerce  if  the  local  government  would  abstain  from 
interfering  with  the  internal  discipline  of  the  ship,  and  the  general 
regulation  of  the  rights  and  duties  of  the  officers  and  crew  towards  the 
vessel,  or  among  themselves.  And  so  by  comity  it  came  to  be  generally 
imderstood  among  civilized  nations  that  all  matters  of  discipline,  and 
all  things  done  on  board,  which  affected  only  the  vessel,  or  those  be- 
longing to  her,  and  did  not  involve  the  peace  or  dignity  of  the  coun- 
try, or  the  tranquillity  of  the  port,  should  be  left  by  the  local  govern- 
ment to  be  dealt  with  by  the  authorities  of  the  nation  to  which  the 
vessel  belonged  as  the  laws  of  that  nation,  or  the  interests  of  its 
commerce,  should  require.  But,  if  crimes  are  committed  on  board  of  a 
character  to  disturb  the  peace  and  tranquillity  of  the  country  to  which 
the  vessel  has  been  brought,  the  offenders  have  never,  by  comity  or 
usage,  been  entitled  to  any  exemption  from  the  operation  of  the  local 
laws  for  their  punishment,  if  the  local  tribunals  see  fit  to  assert  their 
authority.  Such  being  the  general  public  law  on  this  subject,  treaties 
and  conventions  have  been  entered  into  by  nations  having  commercial 
intercourse,  the  purpose  of  which  was  to  settle  and  define  the  rights 
and  duties  of  the  contracting  parties  with  respect  to  each  other  in 
these  particulars,  and  thus  prevent  the  inconvenience  that  might 
arise  from  attempts  to  exercise  conflicting  jurisdictions. 

The  first  of  these  conventions  entered  into  by  the  United  States 
after  the  adoption  of  the  constitution  was  with  France,  on  the  four- 
teenth of  November,  1788,  (8  St.  106,)  "for  the  purpose  of  defining 
and  establishing  the  functions  and  privileges  of  their  respective  con- 
suls and  vice-consuls,"  article  8  of  which,  is  as  follows:  "The  con- 
suls or  vice-consuls  shall  exercise  police  over  all  the  vessels  of  their 
respective  nations,  and  shall  have  on  board  the  said  vessels  all  power 
and  jurisdiction  in  civil  matters  in  all  the  disputes  which  may  there 

451 


CONSULAR  CASES 

arise.  They  shall  have  entire  inspection  over  the  said  vessels,  their 
crew,  and  the  changes  and  substitutions  there  to  be  made,  for  which 
purpose  they  may  go  on  board  the  said  vessels  whenever  they  may 
judge  it  necessarj'.  Well  understood  that  the  functions  hereby  al- 
lowed shall  be  confined  to  the  interior  of  the  vessels,  and  that  they 
shall  not  take  place  in  any  case  which  shall  have  any  interference 
with  the  police  of  the  ports  where  the  said  vessels  shall  be." 

It  was  when  this  convention  was  in  force  that  the  cases  of  The 
Sally  and  The  Newton  arose,  an  account  of  which  is  given  in  Wheat- 
on's  Elements  of  International  Law  ,  (3d  Ed.)  153,  and  in  1  Philli- 
more's  International  Law,  (3d  Ed.)  484,  and  (2d  Ed.)  407.  The 
Sally  was  an  American  merchant  vessel  in  the  port  of  Marseilles, 
and  the  Newton  a  vessel  of  a  similar  character  in  the  port  of  Ant- 
werp, then  under  the  dominion  of  France.  In  the  case  of  The  Sally, 
the  mate,  in  the  alleged  exercise  of  discipline  over  the  crew,  had  in- 
flicted a  severe  wound  on  one  of  the  seamen,  and,  in  that  of  The 
Ne\\i;on,  one  seaman  had  made  an  assault  on  another  seaman  in  the 
vessel'*  boat.  In  each  case  the  proper  consul  of  the  United  States 
claimed  exclusive  jurisdiction  of  the  offense,  and  so  did  the  local 
authorities  of  the  port ;  but  the  coimcil  of  state,  a  branch  of  the  poli- 
tical department  of  the  government  of  France  to  which  the  matter  was 
referred,  pronounced  against  the  local  tribunals,  "considering  that 
one  of  these  cases  was  that  of  an  assault  committed  in  the  boat  of  the 
American  ship  Newton  by  one  of  the  crew  upon  another,  and  the  other 
was  that  of  a  severe  wound  inflicted  by  the  mate  of  the  American 
ship  Sally  upon  one  of  the  seamen  for  having  made  use  of  the  boat 
without  leave."  This  was  clearly  because  the  things  done  were  not 
such  as  to  disturb  "the  peace  or  tranquillity  of  the  port."  Wheat. 
Elem.  (3d  Ed.)  154.  The  case  of  The  Sally  was  simply  a  quarrel 
between  certain  of  the  crew  while  constructively  on  board  the  vessel, 
and  that  of  The  Newton  grew  out  of  a  punishment  inflicted  by  an 
officer  on  one  of  the  crew  for  disobedience  of  orders.  Both  were 
evidently  of  a  character  to  affect  only  the  police  of  the  vessel,  and 
thus  within  the  authority  expressly  granted  to  the  consul  by  the 
treaty. 

No  other  treaty  or  convention  bearing  on  this  subject,  to  which 
our  attention  has  been  called,  was  entered  into  by  the  United  States 
until  a  treaty  with  Sweden  and  Norway,  on  the  fourth  of  September, 
1816.  (8  St.  232,)  where  it  was  agreed,  by  article  5,  that  "the  consuls 
and  their  deputies  shall  have  the  right,  as  such,  to  act  as  judges  and 
arbitrators  in  the  differences  which  may  arise  between  the  captains 
and  crews  of  the  vessels  of  the  nation  whose  affairs  are  intrusted  to 
their  care.     The  respective  governments  shall  have  no  right  to  inter- 

452 


CONSULAR  CASES 

fere  in  matters  of  this  kind,  except  the  conduct  of  the  captain  or  crew 
shall  disturb  the  peace  and  tranquillity  of  the  country  in  which  the 
vessel  may  be,  or  the  consul  of  the  place  shall  feel  himself  obliged  to 
resort  to  the  interposition  and  support  of  the  executive  authority  to 
cause  his  decision  to  be  respected  and  maintained ;  it  being,  neverthe- 
less, understood  that  this  kind  of  judgment  or  award  shall  not  de- 
prive the  contending  parties  of  the  right  which  they  have,  on  their 
return,  to  recur  to  the  judicial  authorities  of  their  own  country." 

Subsantially  the  same  provision  is  found  in  treaties  or  conven- 
tions concluded  with  Prussia  in  1828,  art.  10,  (8  St.  382;)  with  Rus- 
sia in  1832,  art.  8,  (8  St.  448;)  with  Greece  in  1837,  art.  12,  (8  St. 
504;)  with  Hanover  in  1840,  art.  6,  (8  St.  556;)  with  Portugal,  also 
in  1840,  art.  10,  (8  St.  564;)  with  the  grand  duchy  of  Mecklenburg- 
Schwerin  in  1847,  art.  9,  (9  St.  916;)  with  Oldenburg  in  1847,  (9  St. 
868;)  with  Austria  in  1848,  art.  4,  (9  St.  946;)  with  the  Hanseatic 
republics  in  1852,  art.  1,  (10  St.  961;)  with  the  Two  Sicilies  in  1855, 
art.  19,  (11  St.  650;)  with  Denmark  in  1861,  art.  1,  (13  St.  605;)  and 
with  the  Dominican  republic  in  1867,  art.  26,  (15  St.  487.) 

In  a  convention  with  New  Grenada  concluded  in  1850  the  provision 
was  this:  "They  [the  consuls,  etc.]  may  cause  proper  order  to  be 
maintained  on  board  vessels  of  their  nation,  and  may  decide  on  dis- 
putes arising  between  the  captains,  the  officers,  and  the  members  of 
the  crew,  unless  the  disorders  taking  place  on  board  should  disturb 
the  public  tranquillity,  or  persons  not  belonging  to  the  crew  or  to  the 
nation  in  whose  service  the  consul  is  employed;  in  which  case  the 
local  authorities  may  interfere."     Article  3,  cl.  8,  (10  St.  903.) 

Following  this  was  a  convention  with  France,  concluded  in  1853, 
(10  St.  996,)  article  8  of  which  is  as  follows:  "The  respective  con- 
suls general,  consuls,  vice-consuls,  or  consular  agents  shall  have  ex- 
clusive charge  of  the  internal  order  of  the  merchant  vessels  of  their 
nation,  and  shall  alone  take  cognizance  of  differences  which  may  arise, 
either  at  sea  or  in  port,  between  the  captain,  officers,  and  crew, 
without  exception,  particularly  in  reference  to  the  adjustment  of 
wages  and  the  execution  of  contracts.  The  local  authorities  shall  not, 
on  any  pretext,  interfere  in  these  differences,  but  shall  lend  forcible 
aid  to  the  consuls,  when  they  may  ask  it,  to  arrest  and  imprison  all 
persons  composing  the  crew  whom  they  may  deem  it  necessary  to  con- 
fine. Those  persons  shall  be  arrested  at  the  sole  request  of  the  con- 
suls, addressed  in  WTiting  to  the  local  authority,  and  supported  by 
an  official  extract  from  the  register  of  the  ship  or  the  list  of  the  crew, 
and  shall  be  held,  during  the  whole  time  of  their  stay  in  the  port, 
at  the  disposal  of  the  consuls.     Their  release  shall  be  granted  at  the 

453 


CONSULAR  CASES 

mere  request  of  the  consuls  made  in  writing.  The  expenses  of  the  ar- 
rest and  detention  of  those  persons  shall  be  paid  by  the  consuls. 

The  same  provision,  in  substantially  the  same  language,  was 
embraced  in  a  convention  with  Italy  in  1868,  art  11,  (15  St.  609;)  and 
in  another  with  Belgium,  also  in  1868,  art  11,  (16  St.  761.)  This 
convention  with  Belgium  continued  in  force  until  superseded  by  that 
of  1880-81,  under  which  the  present  controversy  arose. 

The  form  of  the  provision  fomid  in  the  present  convention  with 
Belgium  tirst  appeared  in  a  convention  with  Austria  concluded  in 
1870,  art.  11.  (17  St.  827,)  and  it  is  found  now  in  substantially  the 
same  language  in  all  the  treaties  and  conventions  which  have  since 
been  entered  into  by  the  United  States  on  the  same  subject.  See  the 
conventions  with  the  German  Empire  in  1871,  art.  13,  (17  St.  928;) 
^vith  Netherlands  in  1878,  art.  11,  (21  St.  10;)  with  Italy  in  1881, 
art,  1,  (22  St.  18;)  with  Belgium  in  1881,  as  stated  above;  and  with 
Roumania,  the  same  year,  art.  11,  (23  St.  3.) 

It  thus  appears  that  at  first  provision  was  made  only  for  giving 
consuls  police  authority  over  the  interior  of  the  ship,  and  jurisdiction 
in  civil  matters  arising  out  of  disputes  or  differences  on  board;  that 
is  to  say,  between  those  belonging  to  the  vessel.  Under  this  police 
authority  the  duties  of  the  consuls  were  evidently  confined  to  the 
maintenance  of  order  and  discipline  on  board.  This  gave  them  no 
power  to  punish  for  crimes  against  the  peace  of  the  country.  In 
fact,  they  were  expressly  prohibited  from  interfering  with  the  local 
police  in  matters  of  that  kind.  The  cases  of  The  Sally  and  The 
Newton  are  illustrative  of  this  position.  That  of  The  Sally  related 
to  the  discipline  of  the  ship,  and  that  of  The  Newton  to  the  main- 
tenance of  order  on  board.  In  neither  case  was  the  disturbance  of  a 
character  to  affect  the  peace  or  the  dignity  of  the  country. 

In  the  next  conventions  consuls  were  simply  made  judges  and 
arbitrators  to  settle  and  adjust  differences  between  those  on  board. 
This  clearly  related  to  such  differences  between  those  belonging  to  the 
vessel  as  are  capable  of  adjustment  and  settlement  by  judicial  decision 
or  by  arbitration,  for  it  simply  made  the  consuls  judges  or  arbitrators 
in  such  matters.  That  would  of  itself  exclude  all  idea  of  punishment 
for  crimes  against  the  state  which  affected  the  peace  and  tranquillity 
of  the  port ;  but,  to  prevent  all  doubt  on  this  subject,  it  was  expressly 
provided  that  it  should  not  apply  to  differences  of  that  character. 

Next  came  a  form  of  convention  which  in  terms  gave  the  consuls 
authority  to  cause  proper  order  to  be  maintained  on  board,  and  to  de- 
cide disputes  between  the  officers  and  crew,  but  allowed  the  local 
authorities  to  interfere  if  the  disorders  taking  place  on  board  were  of 
such  a  nature  as  to  disturb  the  public  tranquillity,  and  that  is  sub- 

454 


CONSULAR  CASES 

stantially  all  there  is  in  the  convention  with  Belgium  which  we  have 
now  to  consider.  This  treatj^  is  the  law  which  now  governs  the  con- 
duet  of  the  United  States  and  Belgium  towards  each  other  in  this 
particular.  Each  nation  has  granted  to  the  other  such  local  juris- 
diction within  its  own  dominion  as  may  be  necessary  to  maintain 
order  on  board  a  merchant  vessel,  but  has  reserved  to  itself  the  right 
to  interfere  if  the  disorder  on  board  is  of  a  nature  to  disturb  the  public 
tranquillity. 

The  treaty  is  part  of  the  supreme  law  of  the  United  States,  and 
has  the  same  force  and  effect  in  New  Jersey  that  it  is  entitled  to  else- 
where. If  it  gives  the  consul  of  Belgium  exclusive  jurisdiction  over 
the  offense  which  it  is  alleged  has  been  committed  within  the  territory 
of  New  Jersey,  we  see  no  reason  why  he  may  not  enforce  his  rights 
under  the  treaty  by  writ  of  habeas  corpus  in  any  proper  court  of  the 
United  States.  This  being  the  case,  the  only  important  question  left 
for  our  determination  is  whether  the  thing  which  has  been  done — 
the  disorder  that  has  arisen — on  board  this  vessel  is  of  a  nature  to 
disturb  the  public  peace,  or,  as  some  writers  term  it,  the  "public  re- 
pose," of  the  people  who  look  to  the  state  of  New  Jersey  for  their 
protection.  If  the  thing  done — "the  disorder,"  as  it  is  called  in  the 
treaty — is  of  a  character  to  affect  those  on  shore  or  in  the  port  when 
it  becomes  knoT^Ti,  the  fact  that  only  those  on  the  ship  saw  it  when  it 
was  done,  is  a  matter  of  no  moment.  Those  who  are  not  on  the 
vessel  pay  no  special  attention  to  the  mere  disputes  or  quarrels  of 
the  seamen  while  on  board,  whether  they  occur  under  deck  or  above. 
Neither  do  they,  as  a  rule,  care  for  anything  done  on  board  which 
relates  only  to  the  discipline  of  the  ship,  or  to  the  preservation  of 
order  and  authority.  Not  so,  however,  with  crimes  which  from  their 
gravity  awaken  a  public  interest  as  soon  as  they  become  kno^^Ti,  and 
especially  those  of  a  character  which  every  civilized  nation  considers 
itself  boimd  to  provide  a  severe  punishment  for  when  committed  with- 
in its  own  jurisdiction.  In  such  cases  inquiry  is  certain  to  be  in- 
stituted at  once  to  ascertain  how  or  why  the  thing  was  done,  and  the 
popular  excitement  rises  or  falls  as  the  news  spreads,  and  the  facts 
become  known.  It  is  not  alone  the  publicity  of  the  act,  or  the  noise 
and  clamor  which  attends  it,  that  fixes  the  nature  of  the  crime,  but 
the  act  itself.  If  that  is  of  a  character  to  awaken  public  interest 
when  it  becomes  Imown,  it  is  a  "disorder,"  the  nature  of  which  is  to 
affect  the  community  at  large,  and  consequently  to  invoke  the  power 
of  the  local  government  whose  people  have  been  disturbed  by  what  was 
done.  The  very  nature  of  such  an  act  it  to  disturb  the  quiet  of  a 
peaceful  communit3%  and  to  create,  in  the  language  of  the  treaty,  a 
"disorder"  which  will  "disturb   tranquillity   and  public   order  on 

455 


CONSULAR  CASES 

shore  or  in  the  port. ' '  The  principle  which  governs  the  whole  matter 
is  this:  Disorders  which  disturb  only  the  peace  of  the  ship  or  those 
on  board  are  to  be  dealt  with  exclusively  by  the  sovereignity  of  the 
home  of  the  ship,  but  those  which  disturb  the  public  peace  may  be 
suppressed,  and,  if  need  be,  the  offenders  punished,  by  the  proper 
authorities  of  the  local  jurisdiction.  It  may  not  be  easy  at  all  times 
to  determine  to  which  of  the  two  jurisdictions  a  particular  act  of 
disorder  belongs.  Much  will  undoubtedly  depend  on  the  attending 
circumstances  of  the  particular  case,  but  all  must  concede  that  felon- 
ious homicide  is  a  subject  for  the  local  jurisdiction ;  and  that,  if  the 
proper  authorities  are  proceeding  with  the  case  in  a  regular  way,  the 
consul  has  no  right  to  interefere  to  prevent  it.  That,  according  to 
the  petition  for  the  habeas  corpus  is  this  case. 

This  is  fully  in  accord  with  the  practice  in  France,  where  the 
government  has  been  quite  as  liberal  towards  foreign  nations  in  this 
particular  as  any  other,  and  where,  as  we  have  seen  in  the  cases  of 
The  Sally  and  The  Newton,  by  a  decree  of  the  council  of  state,  repre- 
senting the  political  department  of  the  government,  the  French 
courts  were  prevented  from  exercising  jurisdiction.  But  afterwards, 
in  1859,  in  the  case  of  Jally,  the  mate  of  an  American  merchantman, 
who  had  killed  one  of  the  crew  and  severely  wounded  another  on 
board  the  ship  in  the  port  of  Havre,  the  count  of  cassation,  the  high- 
est judicial  tribunal  of  France,  upon  full  consideration,  held,  while 
the  convention  of  1853  was  in  force,  that  the  French  courts  had  right- 
ful jurisdiction  ,  for  reasons  which  sufficiently  appear  in  the  follow- 
ing extract  from  its  judgment:  "Considering  that  it  is  a  principle 
of  the  law  of  nations  that  every  state  has  jurisdiction  throughout  its 
territory ;  considering  that,  by  the  terms  of  article  3  of  the  Code 
Napoleon,  the  laws  of  police  and  safety  bind  all  those  who  inhabit 
French  territory,  and  that  consequently  foreigners,  even  transeuntes, 
find  themselves  subject  to  those  laws;  considering  that  merchant  ves- 
sels entering  the  port  of  a  nation  other  than  that  to  which  they  belong 
cannot  be  withdrawn  from  the  territorial  jurisdiction,  in  any  case  in 
which  the  interest  of  the  state  of  which  that  port  forms  part  finds 
itself  concerned,  without  danger  to  the  good  order  and  to  the  dignity 
of  the  government;  considering  that  every  state  is  interested  in  the 
repression  of  crimes  and  offenses  that  may  be  committed  in  the  ports 
of  its  territory',  not  only  by  the  men  of  the  ship's  company  of  a  for- 
eign merchant  vessel  towards  men  not  forming  part  of  that  company, 
but  even  by  men  of  the  ship's  company  among  themselves,  when- 
ever the  act  is  of  a  nature  to  compromise  the  tranquillity  of  the  port, 
or  the  intervention  of  the  local  authority  is  invoked,  or  the  act  con- 
stitutes a  crime  by  common  law,  [droit  commun,  the  law  common  to 

456 


CONSULAR  CASES 

all  civilized  nations,]  the  gravity  of  which  does  not  permit  any 
nation  to  leave  it  unpunished,  without  impugning  its  rights  of  juris- 
dictional and  territorial  sovereignity,  because  that  crime  is  in  itself 
the  most  manifest  as  well  as  the  most  flagrant  violation  of  the  laws 
which  it  is  the  duty  of  every  nation  to  cause  to  be  respected  in  all 
parts  of  its  territory."  lOrtolan,  Diplomatic  de  la  Mer  (4th  Ed.) 
455,  456;  Sirey,  (N.  S.)  1859;  p.  189. 

The  judgment  of  the  circuit  court  is  affirmed.^ 

WILDENHUS,  IN  RE, 

28  Fed.  Rep.  924.    See  "Wildenhus's  Case"  120  U.  S.  1. 

WILHELM  FEEDERICK,  THE,  (1823,  Great  Britain) 

1  Hag.   138;   Edwards  128. 

Lord  Stowell,  High  Court  of  Admiralty. 

[Cited  in  Bucker  v.  Klorkgeter. — Lushington  maintained  that  am- 
bassador's consent  was  necessary  to  take  jurisdiction. — Phillimore  ar- 
gued that  consul-general  had  always  been  considered  as  giving  the 
"consent  of  the  accredited  agent  of  the  government,  to  which  the 
suitors  belong,  as  was  observed  in  the  case  of  the  Courtney,  which 
has  been  cited." 

Lord  Stowell  said  in  this  case  ambassador's  consent  had  been 
given,  and  that  the  ship  was  British  anyway. — Ed.] 

WILLENDSON  v.  THE  FORSOKET,  (1801,  U.  S.— Denmark) 
1  Pet.  Ad.  197;  Fed.  Cases  17,682. 
Richard  Peters,  District  Court. 

The  claimant,  a  foreign  seaman,  and  one  of  the  crew  of  a  Danish 
ship,  belonging  to  Altona,  cited  the  master  on  a  claim  for  wages.  Al- 
though bound  by  the  articles  to  return  to  Altona,  the  seaman  alleged  a 
discharge  at  Philadelphia.  The  captain  denied  the  discharge,  and 
charged  the  mariner  with  desertion,  for  more  than  twenty-four  hours, 
which,  by  the  Danish  laws,  forfeited  wages.  He  had  refused  to  admit 
the  seaman  into  the  ship,  and  the  sailor  stayed  on  shore  at  lodgings 
for  a  considerable  time :  there  were  faults  on  both  sides ;  but  the  mas- 
ter now  offered  to  take  him  again  on  board,  on  his  promise  of  good 
behavior  in  future,  and  to  forgive  all  past  offenses. 

It  was  insisted,  that  this  was  a  case  in  which  the  court  ought 
to  interfere,  the  contract  being  at  an  end,  by  the  alleged  discharge, 
and  the  sailor,  in  a  Danish  court,  would  not  have  the  benefit  of  the 

*From  7  Sup.  Ct.  Eep.  385. 

457 


CONSULAR  CASES 

proof  of  which  he  was  here  possessed,  to  repel  the  charge  of  deser- 
tion, and  support  of  his  alleged  discharge. 

JUDGE. — It  has  been  my  general  rule  not  to  take  cognizance 
of  dispute  between  the  masters  and  crews  of  foreign  ships.  I  have 
commonly  referred  them  to  their  own  courts.  In  some  very  peculiar 
cases,  I  have  afforded  the  seamen  assistance,  to  pro-  (198)  tect  them 
against  oppression  and  injustice;  and  in  cases  where  the  voyage  was 
broken  up,  or  ended  here,  I  have  compelled  the  payment  of  wages. 
]\Iasters  too  have  always  been  assisted  in  recovering  deserters,  and 
reducing  to  obedience  perverse  and  rebellious  mariners ;  these  must 
be  restored  only  to  the  ship  from  which  they  abscond.  Under  pre- 
text of  carrying  home  deserting  seamen,  attempts  have  been  made  to 
increase  the  force,  by  adding  to  the  numbers,  of  an  armed  belligerent 
ship.  Neither  assistance  or  permission  should  be  afforded  for  this 
purpose  in  a  neutral  territory.  In  the  case  now  before  me,  I  see  no 
cause  to  warrant  my  taking  cognizance.  It  is  the  duty  of  the 
master  to  return  the  seaman  to  his  own  country.  This  he  offers  to  do. 
— It  is  my  duty,  from  motives  of  justice,  and  reciprocal  policy,  to 
discourage  foreign  seamen  under  engagements  to  perform  their  voy- 
age, from  breaking  their  contracts,  with  any  views  of  obtaining  high- 
er wages,  or  from  other  unjustifiable  motives,  quitting  the  service  in 
which  they  are  engaged.  Reciprocal  policy,  and  the  justice  due 
from  one  friendly  nation  to  another,  calls  for  such  conduct  in  the 
courts  of  either  country.  "Whatever  ill  humors  or  misconduct  may 
have  prevailed  between  the  parties  in  this  suit,  the  master  now 
places  the  matter  on  a  reasonable  ground.  He  must  give  the  sailor 
a  certificate  of  forgiveness  of  past  offenses,  to  avail  him  in  his  own 
country.  If  he  takes  the  seaman  on  board,  and  there  shall  appear 
no  deception  in  the  present  offer,  I  shall  not  further  interfere,  but 
dismiss  the  suit.  If  any  difference  should  hereafter  arise,  it  must 
be  settled  by  a  Danish  tribunal.  (199) 

It  was  stipulated  on  the  part  of  the  captain,  by  authority  from  the 
Danish  consul,  that  the  master  should  bona  fide  comply  with  his  en- 
gagement, and  pay  the  sailor's  debt  for  boarding,  to  be  deducted  out 
of  his  wages. 

WILLIAM  HARRIS,  THE,  (1837,  U.  S.) 
Ware,  372;  Fed.  Cases  17,695. 
Ware,  District  Court. 

(Extract)  But  the  allegation  in  the  libel  is  that  the  libellant 
was  ordered  to  be  imprisoned  by  the  American  consul,  and  it  seems 
to  be  assumed  in  the  argument  that  this  would  relieve  the  master 
from  his  responsibility.     In  the  first  place  it  is  to  be  remarked  that 

458 


CONSULAR  CASES 

the  order  of  the  consul  was  obtained  by  the  master  on  his  own  ex 
parte,  representation.  And  in  the  second,  (379)  that  a  consul  has  no 
authority  to  commit  seamen  to  prison.  The  laws  of  the  United  States 
invest  their  consuls  and  commercial  agents  with  certain  powers  to  be 
exercised  for  the  benefit  and  protection  of  American  seamen  when 
in  foreign  ports ;  as  for  the  relieve  of  destitute  mariners  and  furnish- 
ing them  with  the  means  of  returning  home.  But  no  portion  of  the 
judicial  power  of  the  United  States  is  conferred  on  consuls.  They 
cannot  take  cognizance  of  the  offences  of  seamen  in  foreign  ports 
and  sentence  them  to  punishment.  When  the  master  of  a  vessel  finds 
it  necessary  for  the  purpose  of  preserving  discipline  on  board  his 
ship  and  maintaining  his  authority,  to  treat  any  of  his  crew  with 
severity,  as  a  matter  of  prudence  it  may  be  well  for  him  to  consult  the 
consul  and  take  his  advice.  This  is  usually  done  on  his  own  repre- 
sentation of  the  case,  but  the  interposition  of  the  consul  has  never 
been  supposed  to  exempt  the  master  from  his  own  responsibility. 
Wilson  V.  The  Mary,  Gilpin,  31. 

WILLIAMS  V.  THE  WELHAVEN,  See  The  Welhaven. 

WILSON  V.  THE  MARY,  (1828,  U.  S.) 
Gilp  31;  Fed.  Cases  17,823. 
HopMnson,  District  Court. 

(Extract)  I  will  take  this  occasion  to  notice  an  error  which, 
I  fear,  has  frequently,  as  in  this  instance,  misled  our  masters  of  ves- 
sels. They  seem  to  believe  that  they  may  do  anything,  provided  they 
can  obtain  the  assent  of  the  consul  to  it ;  which  assent  consuls  are  apt 
to  give  with  very  little  consideration.  When  the  master,  on  his  re- 
turn, is  called  upon  to  answer  for  his  conduct ;  he  thinks  it  is  enough 
to  produce  a  consular  certificate  approving  his  proceeding;  or  to 
say,  he  consulted  the  consul,  or  acted  on  his  advice.  This  is  alto- 
gether a  mistake.  It  is  certainly  a  very  prudent  precaution  to  consult 
the  consul,  in  any  difficulty,  and  if  the  case  were  fully  and  fairly 
stated  to  him,  and  his  advice  faithfully  pursued,  it  would  afford  a 
strong  protection  on  the  question  of  malicious  or  wrongful  intention, 
but  it  can  give  no  justification  or  legal  sanction  to  an  illegal  act ;  nor 
deprive  those,  who  have  been  injured,  of  their  legal  rights  and  rem- 
edies. 

WOPE  v.  HEMENWAY,  (1855,  U.  S.) 
1  Sprague  300;  Fed.  Cases  18,042. 
Sprague,  District  Court. 

[See  Snow  v.  Wope  where  this  case  was  affirmed. 
This  case  contains  an  interesting  account  of  the  imprisonment 
of  seamen  and  failure  of  consul  to  perform  his  duty. — Ed.] 

459 


CONSULAR  CASES 
WTMAN.  IN  RE.  (1906,  U.  S.— Russia) 

77  N.  E.  379;  191  Mass.  276. 

Lathrop,  Supreme  Court  of  Massachusetts. 

Appeal  from  Probate  Court,  Middlesex  County, 
Petition  of  Charles  F.  Wyman,  Russian  vice-consul,  tor  appoint- 
ment as  administrator  of  the  estate  of  Julius  Saposnik,     From  a  de- 
cree dismissing  the  petition,  petitioner  appeals  on  an  agreed  statement 
of  facts.     Reversed. 

Frederic  B.  Greenhalge,  for  public  administrator.  Frederic  R. 
Coudert  and  John  H.  Appleton,  for  appellant. 

LATHROP,  J.  On  the  agreed  facts  in  this  case  we  have  no  doubt 
that  the  judge  of  the  probate  court  erred  in  appointing  a  public  ad- 
ministrator as  administrator  of  the  estate  of  a  Russian  subject  dying 
here  intestate  and  leaving  personal  property,  and  in  dismissing  the 
petition  of  the  Russian  vice-consul  on  the  ground  that  it  did  not  ap- 
pear that  he  had  a  legal  right  to  be  appointed  administrator  of  the 
estate  to  the  exclusion  of  the  public  administrator. 

By  article  8  of  the  treaty  of  December  6-18,  1832  (8  Stat.  448,) 
between  Russia  and  the  United  States,  it  was  provided:  "The  two 
contracting  parties  shall  have  the  liberty  of  having  in  their  respective 
ports  consuls,  vice-consuls,  agents,  and  commissaries  of  their  own  ap- 
pointment, who  shall  enjoy  the  same  privileges  and  powers  of  the 
most  favored  nation. ' '  The  same  treaty  in  article  10  provides :  * '  The 
citizens  and  subjects  of  each  of  the  high  contracting  parties  shall 
have  power  to  dispose  of  their  personal  goods  within  the  jurisdiction 
of  the  other,  by  testament,  donation  or  otherwise,  and  their  rep- 
resentatives, being  citizens  or  subjects  of  the  other  party  shall  suc- 
ceed to  their  said  personal  goods,  whether  by  testament  or  ah  intes- 
tato,  and  may  take  possession  thereof,  either  by  themselves,  or  by 
others  acting  for  them,  and  dispose  of  the  same  at  will,  paying  to 
the  profit  of  the  respective  governments  such  dues  only  as  the  in- 
habitants of  the  country  wherein  the  said  goods  are  shall  be  subject 
to  pay  in  like  cases." 

(380)  Under  the  most  favored  nation  clause  reliance  is  had 
upon  the  provisions  of  the  treaty  of  July  10,  1853,  between  the  Argen- 
tine Republic  and  the  United  States  (10  Stat.  1001,)  which  read  as 
follows:  "If  any  citizen  of  either  of  the  two  contracting  parties  shall 
die  without  will  or  testament,  in  any  of  the  territories  of  the  other, 
the  consul  general  or  consul  of  the  nation  to  which  the  deceased  be- 
longed, or  the  represontative  of  such  consul-general  or  consul  in  his 
absence,  shall  have  the  right  to  intervene  in  the  possession,  adminis- 
tration and  judicial  liquidation  of  the  estate  of  the  decea,ged,  conform' 

m 


CONSULAR  CASES 

ably  with  the  laws  of  the  country,  for  the  benefit  of  the  creditors  and 
legal  heirs."  See,  also,  article  8  of  the  treaty  between  Costa  Rica 
and  the  United  States  of  July  10,  1851  (10  Stat.  921.) 

There  is  but  little  authority  directly  in  point,  on  the  question 
raised  by  this  appeal.  In  Lanfear  v.  Ritchie,  9  La.  Ann.  96,  decided 
in  1854,  the  decision  was  against  the  vice  consul  of  Sweden  and  Nor- 
way, on  the  ground  that  the  right  claimed  was  "incompatible  with 
the  sovereignity  of  the  state."  But  this  was  at  a  time  when  we  might 
expect  the  doctrine  of  state  rights  to  be  strongly  insisted  upon.  On 
the  other  hand,  there  are  two  decisions  in  the  Surrogate's  Court  for 
Westchester  county,  N.  Y.,  which  fully  sustain  the  position  of  the  vice- 
consul  in  the  case  before  us.  These  cases  are  well  considered  and 
cover  the  entire  ground.  Estate  of  Tartaglio,  12  Misc.  Rep.  245,  33 
N.  Y.  Supp,  1121 ;  In  re  Fattosini,  33  Misc.  Rep.  18,  67  N.  Y.  Supp. 
1119.  None  of  these  cases  are  binding  upon  us,  and  the  case  must 
be  decided  on  general  principles. 

Among  the  powers  conferred  upon  the  president  by  article  2, 
§  2,  of  the  constitution  of  the  United  States,  is  this ;  ' '  He  shall  have 
power,  by  and  with  the  advice  and  consent  of  the  senate,  to  make 
treaties,  provided  two-thirds  of  the  senators  present  concur."  By 
article  6  it  is  declared:  "This  constitution,  and  the  laws  of  the 
United  States  which  shall  be  made  in  pursuance  thereof;  and  all 
treaties  made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land;  and  the  judges 
in  every  state  shall  be  bound  thereby,  anything  in  the  constitution  or 
laws  of  any  state  to  the  contrary  notwithstanding."  Treaties  are  to 
be  liberally  construed.  Shanks  v.  Dupont,  3  Pet.  242,  249,  7  L.  Ed. 
666 ;  Hauenstein  v.  Lynham,  100  U.  S.  483,  487,  25  L.  Ed.  628.  When, 
then,  anything  in  the  constitution  or  laws  of  a  state  are  in  conflict 
with  a  treaty,  the  latter  must  prevail,  and  this  court  has  not  hesi- 
tated to  follow  this  rule,  which  is  generally  recognized  as  the  law  of 
the  land.  Tellefsen  v.  Fee,  168  Mass.  188,  46  N.  E.  562,  45  L.  R.  A. 
481,  60  Am.  St.  Rep.  379;  Ware  v.  Hylton,  3  Ball.  199,  237.  1  L.  Ed. 
568;United  States  v.  Forty-three  Gallons  of  Whisky,  93  U.  S.  188, 
197,  23  L.  Ed.  846 ;  Hauenstein  v.  Lynham,  100  IT.  S-  483,  489,  25  L. 
Ed.  628 ;  the  Head  Money  Cases,  112  U.  S.  580,  598,  5  Sup.  Ct.  247, 
28  L.  Ed.  798,  per  Miller,  J. ;  Geofroy  v.  Riggs,  133  U.  S.  258,  267, 
10  Supt.  Ct.  295,  33  L.  Ed.  642;  In  re  Parrott  (C.  C.)  1  Fed.  481. 

While  it  may  be  true  that  there  is  some  limit  to  the  powers 
of  the  president  and  Senate  in  making  treaties,  as  has  been  intimated 
in  some  of  the  eases  in  the  supreme  court  of  the  United  States,  we  can- 
not accede  to  the  contention  of  the  counsel  of  the  public  administra- 
tor, that  the  treaties  in  question  in  this  case  are  beyond  the  jurisdic- 

461 


CONSULAR  CASES 

tion  of  the  treaty  making  power;  nor  can  we  accede  to  the  further 
contention  as  to  the  construction  of  the  treaty  which  was  adopted  by 
the  judge  of  the  probate  court.  We  might  perhaps  stop  here,  but  as 
the  question  of  giving  a  bond  is  sure  to  arise,  we  are  of  the  opinion 
that  the  vice  consul,  as  he  has  applied  for  letters  of  administration, 
and  thus  has  submitted  himself  to  the  court,  should  be  required  to 
give  a  bond,  and  in  other  respects  to  conduct  himself  with  respect  to 
the  estate  as  would  any  other  administrator. 

The  order,  therefore,  will  be:     Decrees  of  the  probate  court  re- 
versed. 


u;2 


OPINIONS  OF  THE  AHORNEYS  GENERAL 


Vol.  I,  p.  41  (Bradford) 

EESPECT  DUE  TO  CONSULS 

A  riot  before  the  house  of  a  foreign  consul  by  a  tumultuous  assembly,  re- 
quiring him  to  give  up  certain  persons  supposed  to  be  resident  with  him,  and  in- 
sulting him  with  improper  language,  is  an  offence  not  within  the  act  of  the  30th 
of  April,  1790,  for  the  punishment  of  certain  crimes  against  the  United  States. 

A  consul  is  not  a  public  minister,  nor  entitled  to  the  privilege  attached 
to  the  person  of  such  an  officer.  As  the  law  now  stands,  the  offence  in  question 
cannot  be  legally  prosecuted  in  the  courts  of  the  United  States.  If,  however,  the 
grand  jury  will  present  the  offence  in  that  court,  it  will  be  the  duty  of  the 
district  attorney  to  reduce  the  presentment  into  form,  and  the  point  in  contro- 
versy will  thus  be  put  in  a  train  for  judicial  determination. 

Philadelphia,  February  20,  1794. 

Sir :  By  the  correspondence  between  the  British  consul  at  Norfolk 
and  the  attorney  of  the  United  States  for  the  district  of  Virginia, 
which  you  transmitted  to  me  for  consideration,  it  appears  that  a  ques- 
tion has  arisen,  whether  a  riot  committed  by  a  number  of  persons 
tumultuously  assembled  before  the  house  of  a  foreign  consul,  requir- 
ing him  to  deliver  up  certain  persons  supposed  to  be  resident  with  him, 
and  insulting  him  (42)  Math  improper  language,  can  be  the  subject  of 
prosecution  in  the  courts  of  the  United  States.  I  have  now  the  honor 
to  state  to  you  my  opinion  on  that  point,  agreeably  to  your  request. 

Upon  the  best  consideration  I  can  give  the  subject,  I  am  satisfied 
that  this  offense  is  not  within  the  act  of  the  30  April,  1790,  for  the 
punishment  of  certain  crimes  against  the  United  States.  The  only  sec- 
tion which  in  any  degree  relates  to  it,  is  that  which  prescribes  the 
punishment  "for  any  infraction  of  the  laws  of  nations,  by  offering 
violence  to  the  person  of  an  ambassador  or  other  public  minister:" 
but  this  cannot  reach  the  offence  in  question,  because  it  is  now  fully 
settled  that  a  consul  is  not  a  public  minister.  He  is  not  considered  as 
such  by  the  writers  on  the  law  of  nations,  because  he  is  not  in  any  de- 
gree invested  with  the  representative  character;  and  it  has,  more 
than  once,  been  judicially  determined  that  he  is  not  entitled  to  the 
privileges  attached  to  the  person  of  every  public  minister.  The  con- 
stitution of  the  United  States  also  distinguishes  between  them,  where 
it  extends  the  judicial  power  "to  all  cases  affecting  ambassadors,  other 
public  ministers,  and  consuls."    The  same  distinction  is  carefully  ob- 

463 


Vol.  I,  p.  41  (BRADFORD) 

served  in  the  13th  section  of  the  act  establishing  the  judicial  courts 
of  the  United  States. 

An  argument  in  favor  of  the  jurisdiction  of  these  courts  over 
offences  of  the  kind  in  question,  seems  to  result  from  the  clause  in  the 
constitution  just  referred  to ;  but  it  may  be  observed,  that  these  words 
(sufficiently  indefinite  in  themselves)  have  received  a  construction, 
and  seem  to  be  limited  to  prosecutions  "or  suits  against  consuls,"  and 
to  "suits  in  which  a  consul  shall  he  a  party.*'  It  may  be  further 
remarked,  that  by  the  constitution  the  supreme  court  is  to  have 
original  jurisdiction  "in  all  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls."  If  this  be  construed  necessarily  to  include 
crimi7}al  offences  against  consuls,  it  would,  as  the  courts  are  consti- 
tuted, defeat  the  provisions  of  the  very  next  clause,  which  directs 
"that  all  crimes  shall  be  tried  in  the  state  where  they  are  committed." 

I  therefore  coincide  in  opinion  with  the  district  attorney,  that,  as 
the  law  now  stands,  the  offence  in  question  cannot  be  legally  prose- 
cuted in  the  courts  of  the  United  States.  But,  sir,  (43)  if  the  party 
injured  is  advised  or  believes  that  the  federal  courts  are  competent  to 
sustain  the  prosecution,  I  conceive  he  ought  not  to  be  concluded  by  my 
opinion  or  that  of  the  district  attorney.  If  he  desires  it,  he  ought  to 
have  access  to  the  grand  jury  with  his  witnesses;  and  if  the  grand  jury 
will  take  it  upon  themselves  to  present  the  offence  in  that  court,  it  will 
be  the  duty  of  the  district  attorney  to  reduce  the  presentment  into 
form,  and  the  point  in  controversy  will  thus  be  put  in  a  train  for 
judicial  determination. 

I  have  the  honor,  &c., 

WM.  BRADFORD. 
To  the  Secretary  of  State. 


Vol.  I,  p.  43  (Bradford) 

DUTIES  OF  DISTEICT  MARSHALS 
Marshals  are  not  required  by  law  to  execute  the  sentence  of  a  French  consul, 
arising  under  the  12th  article  of  the  convention  with  his  most  Christian  majesty 
and  the  United  States. 

New  York,  March  6, 1794. 
I  have  considered  the  twelfth  article  of  the  convention  between 
his  late  Most  Christian  Majesty  and  the  United  States  of  America, 
and  al.so  the  act  of  congress  concerning  consuls  and  vice-consuls,  as 
far  as  it  prescribes  the  duty  of  the  marshals  of  the  United  States; 
and  it  is  my  opinion  that  the  marshals  are  not  bound  by  the  law 
to  execute  any  sentence  of  a  French  consul,  arising  under  the  said 
article.  RICH.  HARRISON. 

Attorney  United  States  for  the  New  York  District. 

464 


OPINIONS  OF  ATTORNEYS  GENERAL 

Philadelphia,  March  14,  1794. 
I  have  considered  the  convention  and  acts  above  referred  to,  and 
I   perfectly  coincide   in  the  opinion  given   by  the   attorney   of  the 
United  States  for  the  district  of  New  York. 

WM.  BRADFORD. 


Vol.  I,  p.  77  (Lee) 

CONSULAE  PRIVILEGES 

A  consul  is  not  privileged  from  legal  process  by  the  general  law  of  nations, 
nor  is  the  French  consul-general  by  the  consular  convention  between  the  United 
States  and  France.  Though  a  consul,  for  a  transaction,  in  which  he  acted  as  the 
commercial  agent  of  his  government,  the  president  has  no  constitutional  right  to 
interpose  his  authority,  but  must  leave  the  matter  to  the  tribunals  of  justice. 

Philadelphia,  November  21,  1797. 

Sir:  I  have  taken  into  consideration  the  letter  of  citizen  Le- 
tombe,  consul-general  of  the  French  republic  in  the  United  States  of 
America,  bearing  date  the  16th  instant,  with  the  several  papers 
which  accompanied  it. 

The  United  States  have  acknowledged  citizen  Letombe  in  the 
character  of  consul-general;  and  thus  only  they  know  him.  As  such, 
he  is  not  privileged  from  legal  process,  either  by  the  (78)  general 
law  of  nations,  or  by  the  consular  convention  between  the  United 
States  and  France;  and,  if  he  is  authorized  to  represent  the  republic 
of  France  in  any  ministerial  character,  he  has  never  yet  so  offered 
himself  or  been  received.  The  second  article  of  the  convention  seeras 
to  me  to  preclude  all  doubt  respecting  the  suability  of  the  consul- 
general.  The  immunities  and  privileges  annexed  to  his  office  are 
there  distinctly  enumerated;  and,  in  all  other  respects,  he  is  subject 
to  the  laws  as  our  own  citizens  are.  Though  the  transaction  which  has 
given  rise  to  the  suit  instituted  by  John  Coffin  Jones  was  not  of  a 
private  character,  but  of  a  public  nature,  which  concerned  the  re- 
public of  France,  and  in  which  the  consul-general  acted  as  the  com- 
mercial agent  of  the  republic;  yet  the  President  of  the  United  States 
has  no  constitutional  right  to  interpose  his  authority,  but  must  leave 
the  matter  to  the  tribunals  of  justice. 

It  does  not  belong  to  me,  in  my  public  capacity,  to  advise  how 
the  consul-general  may  proceed  to  relieve  himself  from  the  obligation 
of  giving  bail;  yet,  having  a  wish  that  every  inconvenience  may  be 
avoided  by  him,  consistent  with  the  laws  of  our  country,  I  will  venture 
to  suggest  that  the  right  to  hold  him  to  bail,  or  to  recover  the  debt 
from  him,  cannot,  in  my  opinion,  be  maintained ;  and  as  to  the  former, 
any  one  of  the  justices  of  the  supreme  court  is  competent  to  decide 

465 


Vol.  I,  p.  77   (LEE) 

at  his  own  mansion,  whenever  application  shall  be  made.  The  rea- 
son for  this  opinion  is,  that  it  evidently  appears  the  contract  was 
founded  on  the  credit  of  the  French  republic  only,  and  not  on  the 
private  credit  of  citizen  Letombe. 

I  am,  &c.,  &c., 

CHARLES  LEE. 
To  the  Secretary  of  State. 


Vol.  I,  p.  81  (Lee) 

ACTIONS  AGAINST  FOREIGNERS 

The  president  will  not  interfere  with  judicial  proceedings  between  an  indi- 
vidual and  the  commissioner  of  a  foreign  nation  where  the  controversy  may  have 
a  legal  trial.  But  a  person  acting  under  a  commission  from  the  sovereign  of  a 
foreign  nation  is  not  amenable  for  what  he  does  in  pursuance  of  his  commission, 
to  any  judicial  tribunal  in  the  United  States. 

Philadelphia,  December  29,  1797. 

Sir:  I  have  taken  into  consideration  your  letter  of  the  23d, 
enclosing  the  note  of  his  Britannic  Majesty's  minister,  and  the  copy 
of  Henry  Sinclair's  memorial,  complaining  of  two  suits  now  depending 
against  him  in  a  court  of  law  at  Alexandria.  If  the  cause  of  action 
is  fully  and  truly  stated  in  the  memorial,  Henry  Sinclair,  upon  a 
plea  to  the  jurisdiction  of  the  court,  ought  to  prevail  before  the  court; 
for  it  is  as  well  settled  in  the  United  States  as  in  Great  Britain, 
that  a  person  acting  under  a  commission  from  the  sovereign  of  a 
foreign  nation  is  not  amendable  for  what  he  does  in  pursuance  of  his 
commission,  to  any  judiciary  tribunal  in  the  United  States. 

Though  this  be  so,  yet,  according  to  the  constitution  and  laws  of 
the  United  States,  the  executive  cannot  interpose  with  the  judiciary 
proceedings  between  an  individual  and  Henry  Sinclair,  whose  con- 
troversy is  entitled  to  a  trial  according  to  law,  and  to  whom  it  is  hoped 
justice  will  be  impartially  and  speedily  administered. 

The  principle  on  which  the  interference  of  the  president  might 
be  thought  proper  is  the  same  that  has  been  settled  in  the  case  of 
General  Collot,  and  I  believe  in  some  other  cases;  in  all  of  which 
there  has  been  one  and  the  same  opinion  against  the  power  of  the 
executive  to  interfere. 

I  am,  &c.,  &c., 
To  the  Secretary  of  State.  CHARLES  LEE. 


Vol.  I,  p.  378  (Wirt) 
EXECUTION  OF  A  CONSULAR  BOND 
Attestation  is  not  essential  to  the  validity  of  a  consular  bond. 

466 


OPINIONS  OF  ATTORNEYS  GENERAL 

Office  of  the  Attorney  General, 

June  30,  1820. 
Sir:     I  know  not  by  what  accident  your  communication  enclos- 
ing Mr.  Strong's  bond  of  office  has  been  misplaced,  so  as  never  to  have 
been  brought  to  my  notice  till  this  time.     I  regret  the  accident,  al- 
though it  can  have  produced  no  public  inconvenience. 

It  is  not  essential  to  the  validity  of  a  consular  bond  that  it  should 
be  attested.  The  plea  of  non  est  factum  would,  in  such  a  case,  be 
sufficiently  met  by  proof  of  the  handwriting.  The  acknowledgment 
of  it  before  Mr,  Jay  would  constitute  him  a  sufficient  witness,  even  if 
his  official  certificate  should  be  decided  to  be  insufficient.  The  bond 
is  herewith  returned. 

I  have  the  honor,  &c.,  &c.,  &c., 

WM.  WIRT. 
To  the  Secretary  of  State. 


Vol.  I,  p.  406  (Wirt) 
FOREIGN  MINISTERS,  CONSULS,  &c. 

Foreign  consuls  and  vice-consuls  are  not  public  ministerB  within  the  law  of 
nations,  or  the  acts  of  congress,  but  are  amenable  to  the  civil  jurisdiction  of  our 
courts;  and  in  the  case  of  the  Genoese  consul  (2  Dallas,  297)  it  was  held  that 
they  were  not  privileged  from  prosecutions  for  misdemeanors. 

But  consuls  are  bound  to  appear  only  in  the  federal  courts;  the  constitu- 
tion and  laws,  contemplating  the  responsibility  of  consuls,  having  provided  these 
tribunals,  in  exclusion  of  the  state  courts,  in  which  they  shall  answer. 

Office  of  the  Attorney  General. 

December  1,  1820. 

Sir:  I  have  examined,  with  the  respect  and  attention  to  which 
it  is  justly  entitled,  the  letter  of  General  Vives,  the  minister  of  his 
Catholic  Majesty,  which  you  have  done  me  the  honor  to  submit  for 
my  official  opinion;  and  now  proceed  to  give  you  the  result  of  this 
examination. 

The  complaint  is,  that  Mr.  Vallavaso,  the  Spanish  vice-consul 
at  New  Orleans,  has  been  arrested  and  held  to  bail  at  the  suit  of 
Mr,  Sere,  of  that  place,  for  an  alleged  injury  to  the  property  of  com- 
mercial pursuits  of  the  latter;  and  General  Vives  calls  on  the  Presi- 
dent of  the  United  States  to  suspend  the  proceeding  in  this  case,  on 
the  ground  that  ]\Ir.  Vallavaso,  being  a  public  functionary  of  his 
Catholic  Majesty,  is  protected  from  arrest  by  the  law  of  nations,  is 
not  subject  to  the  jurisdiction  of  our  tribunals,  and  can  be  made  to 
answer  for  this  alleged  injury  only  to  the  sovereign  from  whom  he 
derives  his  commission. 

The  president  possess  no  powers  but  those  which  he  de-  (407) 

467 


Vol.  I,  p.  406  (WIRT) 

rives  from  the  constitution  and  laws  of  the  United  States;  and  these 
give  him  no  authority  to  interfere  in  this  case.  It  is  not  a  criminal 
proceeding,  in  the  name  of  the  United  States :  if  it  were,  the  president 
might,  if  he  thought  it  proper,  arrest  the  proceedings  by  a  nolle 
prosequi.  But  this  is  a  civil  suit,  in  the  name  of  an  individual, 
brought  before  the  courts  of  our  country,  for  the  redress  of  a  private 
commercial  injury.  Mr.  Vallavaso  may  plead  to  the  jurisdiction  of 
the  court,  and  bring  the  question,  if  he  chooses,  before  the  supreme 
tribunal  of  the  nation ;  and  his  plea,  if  it  be  well  founded,  will  protect 
him  against  the  suit.  But  the  subject  being  a  civil  individual  suit, 
of  which  the  judiciary  has  possession,  the  president  has  no  authority 
to  interpose  in  the  case,  either  by  arresting  the  proceedings,  by  pun- 
ishing the  plaintiff,  or  even  ordering  a  prosecution  against  him,  unless 
the  step  which  he  has  taken  be  in  violation  of  some  law  of  the  United 
States. 

The  only  law  which  we  have,  that  looks  to  the  protection  of  for- 
eign functionaries  against  civil  suits,  is  the  act  of  congress  of  the 
30th  April,  1790,  "  for  the  punishment  of  certain  crimes  against  the 
United  States;"  the  25th  and  26th  sections  of  which  are  exact  tran- 
scripts of  the  enacting  clauses  of  the  British  statute  of  the  7th  Anne, 
c.  10,  entitled  "  an  act  for  preserving  the  privileges  of  ambassadors 
and  other  public  ministers  of  foreign  princes  and  states." 

It  will  not  be  thought  foreign  to  a  question  which  involves  the 
efficacy  of  our  government  to  protect  its  intercourse  with  foreign 
nations,  to  observe,  that  until  the  statute  of  Anne,  to  which  I  have 
just  referred,  the  British  Crown  possessed  no  power  to  punish  the 
violation  of  the  person  of  an  ambassador.  The  preamble  of  that 
statute  recites  the  occasion  of  its  enactment:  it  was,  that  "several 
turbulent  and  disorderly  persons  had,  in  a  most  outrageous  manner, 
insulted  the  person  of  his  excellency  Andrew  Artemononitz  Mattireof, 
ambassador  extraordinary  of  his  Czarish  Majesty,  Emperor  of  Great 
Russia,  her  Majesty's  good  friend  and  ally,  by  arresting  him  and 
taking  him  by  violence  out  of  his  coach  in  the  public  street,  and  de- 
taining liim  in  custody  for  several  hours,  in  contempt  of  the  protec- 
tion granted  by  her  Majesty,  contrary  to  the  laws  of  nations,"  &c.  The 
sequel  of  the  transaction  we  have  from  (408)  Blackstone's  Commen- 
taries, (vol.  1,  p.  285.)  The  Czar  insists  that  the  sheriff  of  Middle- 
sex and  his  accomplices  should  be  put  to  instant  death;  and  was 
much  surprised  to  receive  for  answer,  "that  the  Queen  could  in- 
flict no  punishment  upon  any,  the  meanest,  of  her  subjects,  unless 
warranted  by  the  law  of  the  land;  and,  therefore,  she  was  per- 
suaded that  he  would  not  insist  on  impossibilities."  The  sheriff 
and  his  accomplices  were,  it  is  true,  tried  and  found  guilty  of  the 

468 


OPINIONS  OF  ATTORNEYS  GENERAL 

facts;  but  the  question  how  far  these  facts  were  criminal,  was  re- 
served to  be  argued  before  the  judges,  but  was  never  determined, 
the  Czar  having  been  appeased  by  the  statute  which  was  presented 
to  him,  under  very  humiliating  circumstances,  on  the  part  of  the 
Queen,  with  a  repetition  of  the  apology  for  her  want  of  power  as  to 
the  past,  and  a  pledge  of  the  act  as  a  law  for  the  future;  whereupon 
the  offenders  were,  at  his  request,  discharged  from  all  further  prosecu- 
tion. This  statute  of  Anne  is  the  first  and  last  which  has  been  passed 
by  the  British  parliament,  for  the  protection  of  foreign  functionaries. 
Our  act  of  congress  is  precisely  commensurate  with  it ;  and  the  power 
which  the  British  monarchy  wanted  to  so  late  a  period  of  its  history, 
was  conferred  on  our  government  in  the  first  year  of  its  formation. 

If  a  consul  be  an  ambassador  or  a  minister,  within  the  meaning 
of  this  act,  the  process  is  by  the  act  declared  null  and  void  to  all  in- 
tents, constructions,  and  purposes  whatsoever ;  and  the  plaintiff,  and 
all  others,  concerned  in  the  suing  forth,  prosecution,  and  execution 
of  the  writ,  are,  upon  conviction,  subject  to  imprisonment  not  ex- 
ceeding three  years,  and  to  fine  at  the  discretion  of  a  court. 

The  functionaries  protected  by  the  act  are  ^'ambassadors  and 
other  puhlic  ministers  of  any  foreign  prince  or  state  authorized,  and 
received  as  such  by  the  President  of  the  United  States. ' '  Are  consuls 
within  this  description?  Under  the  statute  of  Anne,  (in  which  the 
descriptive  words  are  precisely  the  same,)  it  has  been  determined 
that  they  are  not.  The  question  was  raised  by  one  Barbuit,  a  com- 
mercial agent  of  the  King  of  Prussia,  and  was  decided  by  the  Lord 
Chancellor  Talbot,  in  the  10th  year  of  George  II.  The  chancellor, 
after  hearing  counsel  on  the  point,  having  proceeded  to  examine  the 
nature  of  Barbuit 's  functions,  for  the  purpose  of  ascertaining  whether 
he  came  (409)  within  the  description  of  a  public  minister  used  in  the 
statute,  and  having  observed  on  his  wanting  that  essential  feature  of 
this  character — "the  being  intrusted  to  transact  affairs  between  the 
two  crowns" — concludes  thus:  "At  most,  he  is  only  a  consul.  It  is 
the  opinion  of  Barbeyrac,  Wicquefort,  and  others,  that  a  consul  is  not 
entitled  to  the  jus  gentium  belonging  to  ambassadors ;  and  as  there  is 
no  authority  to  consider  the  defendant  in  any  other  view  than  as  a 
consul,  unless  I  can  be  satisfied  that  those  acting  in  that  capacity  are 
entitled  to  the  jus  gentium  I  cannot  discharge  him."  (Talbot's 
cases,  p.  281  et  seq.)  It  is  scarcely  necessary  to  remark  to  you,  sir, 
that  our  courts,  in  construing  an  act  borowed  from  the  British  sta- 
tute-book, constantly  adopt  the  settled  construction  of  the  British 
courts,  unless  it  be  most  palpaby  wrong;  which  can  scarcely  be  pre- 
dicated of  any  decision  made  by  the  Lord  Chancellor  Talbot. 

But  that  consuls  are  not  public  ministers  in  the  sense  of  the  laws 

469 


Vol.  I,  p.  406   (WIRT) 

of  nations,  (which  is  that  of  our  act,)  does  not  depend  on  the  auth- 
ority of  Lord  Talbot  alone;  for  to  his  own,  and  authorities  cited  by 
him,  may  be  added  those  of  Vattel,  lib.  2,  eh.  2,  §  34;  Bynkershock, 
Traite  du  Juge  Compet,  ch.  10,  §  5;  Calliere,  De  la  Maniere  de  Nego- 
eier  avec  les  Souverains,  1st  part,  p.  94,  of  the  London  edition  of  1750; 
Bouchard,  Theorie  de  Traites  de  Commerce,  ch.  6,  §  1 ;  St.  Real, 
Science  du  Gouvernement,  t.  5,  Droit  de  Gens,  ch.  1,  §  4  and  11;  to 
which  may  be  added  the  authority  of  Valin,  Ordonnance  de  la  Ma- 
rine, tom.  1,  lib.  1,  tit.  9,  De  Consuls;  and  Brown's  Civil  Law,  vol. 
2,  ch.  14.  Supported  by  such  authorities,  I  think  it  may  be  safely 
assumed  that  a  consul  is  not  a  public  minister  within  the  meaning 
of  our  act,  which  is  that  of  the  general  law  of  nations. 

I  am  aware  that  some  modern  authors  have  treated  the  question 
""Whether  a  consul  be  a  public  minister,"  as  a  mere  dispute  about 
words.  Such  are  IMr.  De  Steck  and  Mr.  Borel.  And  so  it  may  be, 
in  the  abstract  light  in  which  they  have  taken  up  the  question ;  but  in 
relation  to  our  act  of  congress,  the  question  becomes  a  material  ques- 
tion of  things,  and  not  merely  of  words;  and  on  the  grounds  I  have 
stated,  I  have  no  doubt  that  our  supreme  court  would  concur  with  the 
Lord  (410)  Chancellor  Talbot  in  the  opinion  "that  a  consul  is  not  a 
public  minister,  within  the  spirit  and  meaning  of  the  statute;"  and 
if  so,  there  is  no  law  within  the  United  States  which  exempts  the  con- 
suls of  friendly  powers,  residing  among  us,  from  the  jurisdiction  of 
our  courts;  and  none  which  authorizes  the  president  to  prosecute 
those  who  call  them  before  those  courts  to  answer  civilly. 

Is  our  condition,  as  a  nation,  singular,  in  this  particular?  If 
I  understand  General  Vives  correctly,  it  is;  for  I  understand  him  to 
state  it  as  a  doctrine,  "sanctioned  by  the  most  distinguished  public- 
ists," that  those  who  consider  themselves  aggrieved  by  the  acts  of  a 
consul  of  a  friendly  power  residing  among  them,  have  no  right  to  ap- 
peal to  the  courts  of  the  country,  and  have  no  redress,  except  by  ap- 
plying to  the  government  from  which  such  consul  derives  his  auth- 
ority :  in  other  words,  that  a  consul  is  not  responsible  to  the  courts 
of  the  country  in  which  he  resides,  either  civilly  or  criminally,  and  can 
be  called  to  answer  to  that  sovereign  alone  under  whom  he  holds  his 
appointment. 

With  great  respect  for  the  opinion  thus  advanced,  the  auth- 
orities, whom  it  is  usual  to  con.sult  on  such  occasions,  appear  to  me 
to  hold  a  diflFerent  language;  and,  so  far  as  the  civil  responsibility  of 
the  consul  is  concerned,  to  concur,  unanimously,  in  the  opposite  doc- 
trine. 

There  are  not  wanting  highly  respectable  authorities  who  main- 
tain that  a  consul  is  subject  to  the  whole  extent  of  the  criminal  juris- 

470 


OPINIONS  OF  ATTORNEYS  GENERAL 

diction  of  the  comitiy  in  which  he  resides.  Such  are  Wicquefort, 
De  I'Ambassadeur  et  de  ses  Fonctions,  lib.  1,  §  5;  Bynkershock,  Tr. 
du  Juge  Comp.  des  Ambassadeurs  eh.  10,  §  6;  and  Brown,  Civil  Law, 
vol.  2,  eh.  14.  There  are  others  who  dispute  this  point,  and  who  are 
not  at  present  interested  in  settling  it.  The  question  with  which 
alone  we  have  now  to  deal,  is  the  responsibility  of  the  consul  to  the 
civil  jurisdiction  of  the  country ;  and  I  think  it  may  be  safely  af- 
firmed that  there  is  no  author  of  general  notoriety  in  this  coimtry, 
who  maintains  the  exemption  of  the  consul  from  this  branch  of  juris- 
diction ;  and  no  one,  who  descends  to  the  particular  question  at  all, 
that  does  not  ,  on  the  contrary,  admit  it. 

Vattel,  in  the  passage  before  cited,  claims  only  an  exemption 
from  the  criminal  jurisdiction  of  the  place,  (except  in  the  case  (411) 
of  enormous  crimes;)  and  even  this  exemption  is  so  far  from  being 
considered  by  him  as  an  established  principle,  that  he  recommends  it 
as  the  safer  course  to  settle  it  by  treaty. 

Valin,  (qua  supra,)  having  spoken  of  consuls  as  the  mere  crea- 
tures of  commercial  arrangement  between  sovereigns,  and  as  not  be- 
longing at  all  to  the  law  of  nations,  gives  us  a  history  of  their  estab- 
lishment in  the  Levant  and  elsewhere,  and  then  proceeds  to  treat  of 
their  privileges  thus:  "The  privileges  of  consuls  depend  either  on 
treaties  made  between  the  respective  states,  or  on  custom,  so  far  as 
the  latter  has  not  been  controlled  by  particular  treaties;  which  cus- 
tom, according  to  all  appearance,  is  derived  from  the  capitulations 
concluded  hetivee^i  our  kings,  those  of  France,  and  the  Turkish  em- 
perors." 

It  might  be  fairly  objected  to  any  consular  claim  of  privilege  de- 
rived from  such  a  custom  as  this :  1st.  That  we  are  not  parties  to  the 
treaties  from  whence  the  custom  avowedly  proceeds.  2d.  That  the 
privileges  of  consuls  in  the  Levant  {dans  les  Echelles  du  Levant) 
have  always  been  greater  than  those  of  consuls  who  reside  in  more 
civilized  countries;  insomuch  that  Mr.  Calliere,  while  he  admits  it  as 
a  general  truth  tliat  consuls  are  not  public  ministers  within  the  con- 
templation of  the  law  of  nations,  yet  says  that  those  who  reside  dans 
les  Echelles  du  Levant  are  regarded  as  minister.  (Maniere  de 
Negocier  avec  les  Souverains,  part  1,  pages  94-5.  London  edition  of 
1750.)  It  is  placing  the  dortrine  on  which  I  insist  on  the  highest 
ground,  therefore,  to  appeal  to  the  privilege  of  consuls  in  the  Levant 
as  the  standard.  As  to  these  privileges,  Mr.  Valin  says  the  principal 
are  these:  1st,  that  of  not  paying  any  taxes  or  imposts;  2d,  not  to 
be  imprisoned  for  any  cause  whatever,  except  to  demand  justice 
against  them  at  the  port — ^^sans  a  demander  justice  contr'eux  a  la 
Porte;"  an  exception  which  (to  say  the  least  of  it)  covers  the  whole 

471 


Vol.  I,  p.  406  (WIRT) 

groimd  for  which  I  contend,  of  their  subjection  to  the  tribunals  of  the 
country  for  civil  injuries.  Mr.  De  Steck,  a  most  strenous  advocate 
for  the  rights  of  consuls,  has,  in  his  essay,  given  us  an  elaborate 
synopis  of  all  the  stipulations  as  to  consular  privileges  which  are  to  be 
found  in  the  commercial  treaties  of  the  world  since  the  year  1604, 
and  has  there  given  us  the  results  of  this  collation;  which,  so  far  as 
the  present  question  is  concerned,  are:  (412)  1st.  That  consuls  are 
regularly  exempt  from  the  criminal  jurisdiction  of  the  sovereign 
and  the  magistrates  of  the  country  where  they  reside;  at  least,  that 
they  cannot  be  arrested  or  put  in  prison  on  such  charges."  2d. 
''Quant  aiix  affaires  et  aux  matieres  civiles,  les  consuls  sont  generale- 
ynent  soumis  a  la  jurisdiction  des  trihunaux  du  pays  et  du  lieu  de  leur 
etablissement  et  de  leur  residence.  8 'Us  exercent  de  negoces,  Us 
so)it  traites  de  la  meme  facon  et  sur  le  meme  pied  que  les  autres  nego- 
cians." 

It  does  not  appear,  by  the  statement  of  the  case,  whether  Mr. 
Villavaso  does  or  does  not  carry  on  trade.  If  he  do,  he  is,  according 
to  this  and  all  the  other  authorities,  to  be  treated  as  other  merchants 
are ;  but  if  he  do  not,  he  is  still,  according  to  Mr.  De  Steck,  subject,  in 
civil  matters,  to  the  jurisdiction  of  the  courts  of  the  countrj'.  And  it 
is  in  point  to  the  particular  case  before  us  to  observe,  that  the  writer 
founds  this  result,  among  other  authorities,  on  a  treaty  between  Spain, 
herself,  and  France — Convention  entre  la  France  et  I'Espague,  con- 
clue  au  Paris,  le  13  eme  Mars,  1769,  art.  2.  (De  Steck,  Essai  sur  les 
Consuls,  sec.  7,  p.  62-3:  Berlin  ed.,  1790.  De  I'Origine  et  des  Fonctions 
des  Consuls,  chap.  4,  p.  40:  St.  Petersburg,  1807.) 

Messrs.  Calliere  and  Borel  do  not  descend  to  the  particular  ques- 
tion. The  former  merely  says  that,  although  not  ministers,  consuls 
enjoy  some  of  the  privileges  of  ministers.  "What  they  are,  he  does  not 
specify.  Mr.  Borel  satisfies  himself  with  referring  to  the  treaties  be- 
tween the  European  princes  and  the  Porte,  as  well  as  those  with  the 
Regencies  of  Barbary,  as  giving  the  detail  of  consular  privileges;  and 
(waiving  the  exceptions  already  made  to  this  source  of  informa- 
tion) it  appears  by  Valin  and  De  Steck,  that  even  in  those  countries 
consuls  are  subject  to  the  civil  jurisdiction  of  the  place  of  their  resi- 
dence. 

Our  constitution  and  laws,  contemplating  the  responsibility  of 
consuls  to  the  jurisdiction  of  our  courts,  have  provided  the  tribunals 
before  which  they  may  sue  and  be  sued  or  prosecuted;  these  are  the 
tribunals  of  the  nation,  before  which  alone,  in  exclusion  of  the 
state  courts,  consuls  are  bound  to  answer. 

I  am  not  aware  that  the  question  of  the  liability  of  consuls  to 
the  jurisdiction  of  the  courts  of  the  country  has  been  brought  (413) 

472 


OPINIONS  OF  ATTORNEYS  GENERAL 

before  any  of  our  national  courts,  except  in  the  case  of  the  Genoese 
consul,  reported  2  Dallas,  297.  In  this  case,  the  circuit  court  of  the 
United  States,  consisting  of  Judges  Wilson,  Iredell,  and  Peters,  de- 
termined that  the  defendant,  a  consul  of  Genoa,  was  not  privileged 
from  prosecution  for  a  misdemeanor,  in  virtue  of  his  consular  priv- 
ileges. 

The  result  of  this  examination  is,  that  the  president  cannot  inter- 
fere in  the  suit  instituted  by  Mr.  Sere  against  Mr.  Villavaso;  that  if 
the  process  has  been  issued  from  a  court  of  the  state,  the  consul  may 
abate  the  suit  by  pleading  to  the  jurisdiction ;  that  if  it  be  before  a 
national  court,  the  consul  may,  if  he  choose  it,  bring  the  question  be- 
fore the  supreme  court  of  the  nation,  for  final  decision;  and  in  the 
meantime,  that,  in  my  opinion,  consuls  residing  among  us  are  subject 
to  the  civil  jurisdiction  of  our  courts;  in  which  respect,  so  far  as  we 
may  rely  on  the  authors  who  have  treated  of  this  subject,  they  are  on 
the  same  footing  here  as  in  other  countries. 
I  have  the  honor  to  be,  most  respectfully,  your  obedient  servant, 

WM.  WIRT. 
To  the  President  of  the  United  States. 


Vol.  II,  p.  378   (Berrien) 
AUTHOEITY  AND  JURISDICTION  OF  CONSULS 

Consular  jurisdiction  depends  on  the  general  law  of  nations,  subsisting  treat- 
ies between  the  two  governments  affected  by  it,  and  upon  the  obligatory  force  and 
activity  of  the  rule  of  reciprocity. 

French  consular  jurisdiction  in  an  American  port  depends  on  the  correct  in- 
terpretation of  the  treaties  subsisting  between  his  Most  Christian  Majesty  and 
the  United  States,  and  which  limit  it  to  the  exercise  of  police  over  French  ves- 
sels and  jurisdiction  in  civil  matters  in  all  disputes  which  may  there  arise;  (279) 
and  provide  that  such  police  shall  be  confined  to  the  interior  of  the  vessel,  and 
shall  not  interfere  with  the  police  of  our  ports  where  the  vessels  shall  be.  They 
provide  also,  that,  in  cases  of  crimes  and  breaches  of  the  peace,  the  offenders 
shall  be  amenable  to  the  judges  of  the  country. 

The  claim  of  the  French  envoy,  therefore,  for  the  exercise  of  judicial  power 
by  the  consul  of  his  government  in  the  port  of  Savannah,  is  not  warranted  by 
any  subsisting  treaties,  nor  by  a  rule  of  reciprocity  which  the  executive  has 
power  to  permit  to  be  exercised. 

Attorney  General's  Office, 
September  8,  1830. 
Sir:     I  have  received  your  letter  and  the  accompanying  com- 
munication of  M.  Rous  de  Roehelle,  envoy  extraordinary  and  minis- 
ter plenipotentiary  of  his  Most  Christian  Majesty  near  this  govern- 
ment, claiming  for  the  consuls  of  his  Majesty  residing  in  the  United 

473 


Vol.  II,  p.  378  (BERRIEN) 

States  exclusive  jurisdiction  over  offenses  committed  on  board  of  the 
merchant  vessels  of  France  by  French  subjects,  while  such  vessels  are 
lying  in  our  ports,  in  all  cases  where  the  tranquillity  of  the  port  is 
not  disturbed,  and  the  aid  of  the  local  authorities  is  not  invoked 
by  the  consul.  M.  Roux  de  Rochelle  calls  your  attention  to  a  partic- 
ular case  which  has  recently  occured  in  the  port  of  Savannah,  in 
which  he  supposes  the  consular  jurisdiction  has  been  invaded  by  the 
interposition  of  the  local  judiciary ;  and  asks  you,  after  giving  an 
attentive  examination  to  the  claim,  to  take  such  measures  as  may 
appear  proper  to  avoid  a  recurrence  of  similar  conflicts  of  juris- 
diction. 

In  referring  this  communication  to  me,  you  request  my  opinion — 

1.  As  to  the  validity  of  the  claim  asserted  by  M.  Roux  de  Roch- 
elle ;  and, 

2.  If  valid,  what  steps  it  would  be  proper  for  the  department 
to  take  towards  satisfying  it,  and  preventing  the  recurrence  of  similar 
complaints. 

I  proceed  to  state  to  you  the  result  of  my  reflections  on  the  first 
of  these  questions.  The  conclusion  to  which  these  have  conducted  me 
will  dispense  with  the  necessity  of  considering  the  remaining  in- 
quiry-. 

The  claim  of  consular  jurisdiction,  which  we  are  examining,  must 
depend  on  the  general  law  of  nations,  on  treaties  subsisting  between 
the  United  States  and  his  Most  Christian  Ma-  (380)  jesty,  or  on  the 
activity  and  obligatory  force  of  the  rule  of  reciprocity  which  is  urged 
in  its  support.    Each  of  these  shall  be  briefly  considered. 

The  origin  of  the  appointment  of  consuls  is  tracted  to  the  neces- 
sity for  extraordinary  protection  of  certain  branches  of  commerce 
formerly  carried  on  with  barbarous  and  uncivilized  nations.  Among 
civilized  states,  commercial  agents  of  this  character  were  more  recently 
introduced.  Even  at  this  day,  the  custom  of  receiving  them  cannot, 
it  is  said  by  a  late  writer,  be  looked  upon  as  universally  established; 
and  their  rights,  where  they  are  admitted,  differ  very  widely  in  dif- 
ferent states.  Those  who  are  sent  out  of  Europe  exercise  a  pretty 
extensive  jurisdiction  over  the  subjects  of  their  sovereign.  In  Eu- 
rope, there  are  some  places  where  they  exert  a  civil  jurisdiction,  more 
or  les.s  limited,  over  their  fellow-subjects  residing  there.  In  others, 
they  have  only  a  voluntary  jurisdiction;  while  in  others,  their  func- 
tions are  limited  to  watch  over  the  commercial  interests  of  the  state, 
particularly  the  ob.servation  of  treaties  of  commerce,  and  to  assist 
with  their  advice  and  interposition  those  of  their  nation  whose  com- 
mercial pursuits  have  led  them  to  the  place  of  their  consulate. 

In  the  Cours  de  Droit  Commercial,  by  J.  N.  Pardessus,  it  is  said 

474 


OPINIONS  OF  ATTORNEYS  GENERAL 

that  a  sovereign  cannot  invest  a  consul  with  judicial  power,  even  over 
his  own  subjects  in  a  foreign  country,  so  as  in  that  country  to  enforce 
the  judgment  according  to  the  municipal  law ;  but,  that,  nevertheless, 
the  decision  of  a  French  consul  in  England,  in  questions  between 
French  subjects,  will  have  effect  in  France.  This,  however,  is  in 
civil  cases ;  for  the  same  writer  admits  that,  in  all  Christian  countries, 
as  it  were  by  common  consent,  with  reference  to  the  administration 
of  penal  laws,  the  prosecution  of  crimes  against  foreigners  is  left  en- 
tirely to  the  municipal  tribunal  of  the  place  where  they  are  committed. 
He  adds,  that  a  French  consul  cannot  have  criminal  jurisdiction  in  a 
foreign  country,  unless  it  is  expressly  given ;  and  that  there  is  no  in- 
stance of  such  a  power  in  any  christian  country. 

In  a  Treatise  on  the  Laws  of  Commerce,  &c.,  by  Mr.  Chitty,  he 
remarks,  with  precise  reference  to  such  a  case  as  the  one  under  consid- 
eration, that  it  is  said  to  be  the  indispensable  duty  (381)  of  the  con- 
sul to  imprison  disorderly  seamen  on  the  complaint  of  their  mas- 
ters; yet  he  should  be  cautious  how  he  punishes  British  seamen,  or 
masters  of  ships,  on  their  mutual  complaint  against  each  other,  as 
it  may  subject  him  to  an  action  for  false  imprisonment.  According 
to  the  same  writer,  foreign  consuls  have  no  judicial  power  in  Eng- 
land. 

From  the  Essai  sur  les  Consuls,  par  M.  de  Steck,  I  extract  the 
following:  "II  faut  cependant  observer,  que  le  pouvoir  et  les  droits 
des  consuls  ne  sont  pas  dans  tons  les  pays  de  la  meme  etendue.  Les 
traites  les  modifient  et  les  limitent  differemment.  Pour  parvenir  a 
fixer  les  principes  en  cette  matiere,  il  faut  faciliter,  parcourir,  con- 
suiter  les  traites  de  commerce,  en  comparer  les  stipulations,  en  faire 
un  precis,  en  tirer,  et  en  inferer  des  consequences  et  des  resultats,  et 
asseoir  sur  ces  conslusions  les  idees  et  les  principes." 

I  think,  then,  it  must  be  sufficiently  obvious  that  the  principals  of 
international  law,  as  they  are  recognized  in  Europe,  afford  no  warrant 
for  the  exercise  of  judicial  power  by  consuls ;  and  that  the  rights  and 
duties  of  these  functionaries  depend,  both  for  their  authority  and  ex- 
tent, upon  the  treaties  subsisting  between  the  governments  respectively 
interchanging  this  species  of  commercial  agents. 

Turning  to  the  treaties  between  the  United  States  and  France, 
I  find  that  the  29th  article  of  that  of  1778  is  in  these  w^ords : 

"The  two  contracting  parties  grant  mutually  the  privilege  of 
having,  each  in  the  ports  of  the  other,  consuls,  vice-consuls,  agents, 
and  commissaries  whose  functions  shall  be  regulated  by  a  particular 
agreement."  Here,  as  between  the  United  States  and  the  French 
government,  is  a  complete  recognization  of  the  principle  to  which  we 
have  just  referred — that  consuls  exist  bj^  force  of  treaties,  which, 

475 


Vol.  II,  p.  378  (BERRIEN) 

consequently,  regulate  their  functions.  The  commercial  convention 
which  was  subsequently,  in  1788,  entered  into  between  the  two  powers, 
had  for  its  object  to  define  and  establish  the  fimctions  and  privileges 
of  their  respective  consuls  and  vice-consuls.  The  eighth  article  of 
that  convention  secured  to  these  functionaries  the  right  to  "exercise 
police  over  all  the  vessels  of  their  respective  nations,"  and  "jurisdic- 
tion in  civil  matters,  in  all  disputes  which  may  there  arise."  It  was 
provided  that  this  exercise  of  police  (382)  should,  "be  confined  to  the 
interior  of  the  vessels,"  and  that  this  should  not  interfere  "with  the 
police  of  the  ports  where  the  said  vessels  shall  be."  The  tenth  arti- 
cle declares  that  "where  the  respective  subjects  or  citizens  shall 
have  committed  any  crime  or  breach  of  the  peace,  they  shall  be 
amendable  to  the  judges  of  the  countr>^ ' ' 

Even  under  that  convention,  then,  the  case  which  has  given  rise 
to  the  remonstrance  of  M.  Roux  de  Rochelle  would  have  been  beyond 
the  jurisdiction  of  the  consul,  and  punishable  only  in  the  judicial  tri- 
bunals of  the  country.  But  this  compact  was  limited,  by  its  own 
provisions,  to  twelve  years  after  its  date,  and  was  specifically  annulled 
by  an  act  of  congress  passed  the  7th  of  July,  1798.  The  tenth  article 
of  the  convention  of  1800,  between  the  United  States  and  the  French 
republic,  authorized  the  reciprocal  appointment  of  commercial  agents, 
and  stipulated  that  they  should  respectively  enjoy  the  rights  and  pre- 
rogatives of  the  similar  agents  of  the  most  favored  nations.  This 
convention,  however,  which  annulled  that  of  1788,  (if  that  had  not 
been  effectually  done  by  the  act  before  referred  to,)  was  itself  limited 
to  eight  years,  and  has  been  succeeded  by  the  commercial  convention 
of  June,  1822,  the  6th  article  of  which  merely  gives  to  the  consuls  and 
vice-consuls  of  the  two  nations,  respectively,  the  right  of  arresting 
seamen  who  shall  have  deserted ;  and,  for  that  purpose,  requires  them 
to  address  themselves  to  the  courts,  judges,  and  officers  competent. 

From  this  brief  sketch  of  the  diplomatic  relations  between  the 
United  States  and  his  Most  Christian  Majesty,  it  will  be  seen  that  the 
consular  claim  to  judicial  power  is  not  warranted  by  subsisting 
treaties  between  the  two  governments.  M.  Roux  de  Rochelle,  never- 
theless, informs  you  that  the  rule  which  allows  it  "is  applied  in 
France  to  the  ships  of  the  United  States,  as  well  as  to  those  of  other 
nations,  in  accordance  with  the  wish  of  the  American  consuls  them- 
selves," which  gives  the  French  government,  as  he  urges,  "the  right 
to  enjoy  an  exact  reciprocity  in  the  ports  of  the  Union." 

From  what  is  said  by  'Mr.  Chitty,  I  should  infer  that,  if  applied 
to  British  consuls  exercising  their  functions  in  France,  it  cannot  be  re- 
ciprocated to  French  consuls  residing  in  England.  But,  however  this 
may  be,  in  relation  to  the  claim  of  (383)  the  consuls  of  France,  as 

476 


OPINIONS  OF  ATTORNEYS  GENERAL 

derived  from  the  obligation  of  this  government  to  give  effect  to  the 
rule  of  reciprocity,  I  have  to  remark,  that,  in  the  United  States,  the 
functions  of  its  judicial  ofificers  cannot  be  interferred  with  by  the 
executive  power.  Subjects  which  have  been  committed  to  the  juris- 
diction of  the  judicial  department  by  the  legislation  of  the  Union, 
must  remain  so  subject  until  withdrawn  by  exercise  of  similar  auth- 
ority, or,  where  the  rights  of  foreign  governments  are  concerned,  by 
an  act  of  the  treaty-making  power.  However  desirable,  therefore, 
it  may  be  to  give  operation  to  the  rule  of  reciprocity,  the  power  which 
is  necessary  to  effect  such  an  object  does  not  belong  to  the  executive. 
The  supreme  judiciary  of  the  Union,  in  the  case  of  the  Nereide,  dis- 
claimed the  right  to  call  this  rule  into  activity,  and  to  apply  it  to  a 
case  then  properly  subjected  to  their  jurisdiction;  referring  to  the 
legislature  as  the  only  source  of  such  an  authority.  The  executive 
department  of  the  government  is  equally  powerless  in  this  regard. 

It  will  be  obvious  to  you,  from  the  preceding  remarks,  that  the 
opinion  which  I  entertain  is  adverse  to  the  claim  of  consular  juris- 
diction asserted  by  M.  Roux  de  Rochelle;  and  this  dispenses  with 
the  necessity  of  replying  to  your  remaining  inquiry. 

JN.  MacPHERSON  BERRIEN. 
To  D.  Brent,  Esq.,  Department  of  State. 


Vol.  II.  p.  521  (Taney) 
PEOVISIONS  FOR  WIDOWS  OF  CONSULS  WHO  DIE  IN  OFFICE 

The  executive  will  pay  to  the  widow  of  a  consul,  having  a  salary,  who  has 
died  in  office  abroad,  upon  her  return,  the  amount  which  it  has  been  customary 
to  pay  to  consuls  themselves  upon  their  recall,  viz:  his  salary  for  three  months. 

The  funeral  expenses  of  the  deceased  consul,  and  the  incidental  and  con- 
tingent expenses  of  the  consulate  after  his  death,  are  a  fair  item  of  charge  on 
the  fund  for  contingent  expenses  of  foreign  intercourse. 

And  where  the  son  of  the  deceased  consul  remains  at  the  port  and  dis- 
charges duties  of  consul  which  are  recognized  by  the  government,  he  may  receive 
the  compensation  fixed  by  law  for  such  services. 

Such  was  the  practice  of  the  government  in  the  cases  of  Messrs.  Folsom, 
Heap,  Simpson,  and  Hodgson. 

Attorney  General's  Office, 
May  31, 1832. 
Sir:     The  claim  of  Mrs.  Coxe  and  her  son,  upon  which  you  have 
called  for  my  opinion,  presents,  in  one  respect,  a  new  ease.    Mr.  Coxe, 
•  it  appears,  is  the  first  of  our  consuls  to  the  Barbary  States  who  has 
died  while  in  office,  and  his  widow  and  family  have  been  obliged  to 
return  home  at  their  own  expense;  and  Mrs.  Coxe  presents  a  claim 
against  the  government  for  these  expenses. 

477 


Vol.  II,  p.  521  (TANEY) 

Under  the  act  of  May  1,  1810,  there  can  be  no  outfit  allowed  to 
a  consul,  nor  is  there  any  authority  given  to  pay  his  expenses  home; 
but,  by  practice  of  the  government,  it  has  been  (522)  usual  to  con- 
sider him  in  office,  and  therefore  entitled  to  his  salary,  after  leaving 
his  station,  for  a  time  sufficient  to  enable  him  to  return  home.  And  as 
it  was  desirable  that  some  certain  period  of  time  should  be  fixed  on, 
in  order  to  avoid  the  necessity  of  a  particular  examination  in  every 
case,  three  months  appear  to  have  been  adopted  as  a  reasonable  time 
in  such  cases,  and  accounts  have,  I  understand,  been  settled  accord- 
ingly. 

If,  therefore,  Mr.  Coxe  had  lived  to  return  with  his  family,  he 
would  have  been  entitled  to  three  months'  pay  after  leaving  his  sta- 
tion. This  interpretation  of  the  law  of  May  1,  1810,  appears  to  be  a 
reasonable  and  just  one.  His  salary  goes  on  while  the  consul  is  per- 
forming his  outward  voyage,  and  there  seems  to  be  no  ground  for 
denying  it  to  him  on  his  return.  He  is,  however,  during  that  period 
of  time,  rendering  no  service ;  and  the  allowance  of  the  salary  for 
three  months  after  leaving  his  station  is  evidently  made  to  enable  him 
to  return  to  his  own  country ;  and,  as  his  term  of  office  is  construed  to 
endure  for  that  purpose,  although  he  is  not  discharging  any  of  its 
functions,  it  would  seem  that  the  same  principle  may  with  equal  pro- 
priety be  applied  to  the  case  of  his  widow;  and  three  months'  salary, 
from  the  time  of  his  death,  may  be  paid  to  her,  in  order  to  enable  her 
to  return  with  her  family.  This,  I  think,  is  not  only  an  equitable  con- 
struction of  the  law,  but  one  which,  from  the  nature  of  the  public  ser- 
vice in  which  a  diplomatic  agent  is  engaged,  is  called  for  by  the 
principles  of  justice ;  and  it  would  be  a  severe  and  harsh  construction 
of  it  to  deny,  after  his  death,  to  his  widow  and  family,  those  means 
of  coming  again  to  their  home  which  would  have  been  offered  to  them 
by  the  public  if  he  had  lived.  But  I  do  not  think  more  can  be  allowed 
for  their  expenses  than  the  usual  salary  for  three  months. 

The  funeral  expenses  appear  to  me  to  be  a  fair  item  of  charge 
on  the  fund  for  the  contingent  expenses  of  foreign  intercourse.  The 
act  of  May  1,  1810,  gives  the  consul  at  Tripoli  two  thousand  dollars 
per  annum,  as  a  compensation  "for  his  personal  expenses  and  ser- 
vices," but  does  not  forbid  the  allowance  of  expenses  other  than  per- 
sonal. And,  indeed,  the  language  used  in  the  law  necessarily  im- 
plies that  other  expenses  are  contemplated,  and  are  to  be  allowed. 
And  as  the  consuls  to  the  Bar-(523)bary  States  are  diplomatic  agents 
of  this  government,  they  are  entitled  to  be  repaid,  out  of  the  approp- 
riation to  defray  the  contingent  expenses  of  foreign  intercourse,  such 
incidental  expenspsL  as  are  usually  allowed  in  the  case  of  other  diplo- 
matic agents ;  and,  i|s  the  f m^eral  expenses  of  such  officers,  when  they 

478 


OPINIONS  OF  ATTORNEYS  GENERAL 

have  died  abroad,  have  been  borne  by  the  public,  I  see  no  reason  why  it 
should  not  be  done  in  the  case  of  Mr,  Coxe.  Indeed,  the  honor  and 
dignity  of  the  government  require  that  the  funeral  of  its  representa- 
tive in  a  foreign  country  should  be  decently  and  properly  attended  to. 

The  incidental  and  contingent  expenses  of  the  consulate  which 
occurred  after  the  death  of  Mr.  Coxe,  if  properly  vouched,  ought,  I 
think,  also  to  be  paid  by  the  government  as  it  is  a  part  of  the  expenses 
of  foreign  intercourse;  and,  although  the  money  was  not  paid  by  a 
consul  regularly  appointed,  yet,  if  it  were  paid  by  one  who  was  act- 
ing in  that  character  and  discharging  its  duties,  and  if  the  expenses 
were  proper  to  be  incurred,  and  were  incurred  for  the  public  service, 
they  ought  to  be  repaid,  and  appear  to  me  to  be  a  lawful  charge  on 
the  contingent  fund  above  mentioned. 

The  salary  claimed  by  Charles  J.  Coxe,  during  the  time  he  acted 
as  consul,  may,  I  think,  be  legally  paid  to  him  as  salary.  The  law 
of  May  1,  1810,  gives  the  salary  to  the  consul  for  his  personal  ser- 
vice and  expenses.  If,  after  the  death  of  Mr.  Coxe,  his  son  performed 
the  services  and  incurred  the  expenses  of  a  residence  there,  and  his 
acts  have  been  recognized  by  the  government,  I  do  not  perceive  why 
he  should  not  receive  the  compensation  fixed  by  law  for  such  services. 
He  was  de  facto  consul  for  the  time,  and  the  public  received  the 
benefit.  "What  services  he  performed,  or  had  to  perform,  I  have  not 
the  means  of  knowing;  and  the  opinion  I  express  is  foimded  on  the 
presumption  that  he  rendered  faithfully  whatever  services  a  consul 
duly  appointed  would  have  rendered  for  the  time,  and  that  the  govern- 
ment have  adopted  his  acts  in  that  character.  The  practice  of  the 
government  sanctions  this  opinion,  as  appears  by  the  papers  before 
me;  and  in  several  instances  similar  to  this,  since  the  law  of  1810, 
the  salary  has  been  paid.  I  refer  to  the  cases  of  Mr.  Folsom,  in  1818 
and  1819;  Mr.  Heap,  in  1823  and  1824;  Mr.  Simpson,  in  1820  and 
1821 ;  and  Mr.  Hodgson,  in  1819. 

(524)  The  public  interest  requires  that  the  duties  of  the  office 
should  be  discharged  by  some  one;  and  where,  upon  the  death  of 
the  consul,  a  person  who  is  in  possession  of  the  papers  of  the  consulate, 
enters  on  the  discharge  of  its  duties,  and  fulfils  them  to  the  satis- 
faction of  the  government,  I  do  not  perceive  why  he  should  not  be 
recognized  as  consul  for  the  time  he  acted  as  such,  and  performed  the 
services  to  the  public ;  and,  if  he  is  so  recognized,  the  law  of  congress 
entitles  him  to  his  salary. 

R.  B.  TANEY. 
To  the  President  of  the  United  States. 


479 


Vol.  II,  p.  725  (BUTLER) 

Vol.  II.  p.  725   (Butler) 
IMMUNITIES   OF  FOREIGN  CONSULS 

Foreigrn  consuls  in  the  United  States  are  entitled  to  no  immunities  beyond 
those  enjoyed  by  foreigners  coming  to  this  country  in  a  private  capacity,  except 
that  of  being  sued  and  prosecuted  exclusively  in  the  federal  courts. 

If  any  foreign  consul  shall  be  guilty  of  any  illegal  or  improper  conduct,  he 
will  be  liable  to  the  revocation  of  his  exequatur  and  to  be  punished  according  to 
our  laws;  or  he  may  be  sent  back  to  his  own  country,  at  the  discretion  of  our 
government. 

Attorney  General's  Office, 

September  16,  1835. 

Sir:  In  your  communication  of  the  20th  ultimo,  you  inform  me 
that  you  have  been  instructed  by  the  president  to  request  my  opinion 
as  to  the  immimities  of  foreign  consuls  in  the  United  States  under 
the  laws  of  nations  and  the  constitution  and  laws  of  the  United  States. 

After  a  careful  consideration  of  this  subject,  I  am  of  opinion 
that  foreign  consuls  in  the  United  States  are  entitled  to  no  immunities 
beyond  those  enjoyed  by  persons  coming  to  this  country  in  a  private 
capacity  from  foreign  nations,  except  that  of  being  sued  and  pros- 
ecuted exclusively  in  the  United  States  courts,  under  the  jurisdiction 
conferred  on  them  by  the  constitution  and  laws  of  the  United  States. 
The  question  whether  consuls  are  entitled  to  the  privileges  belonging 
to  public  ministers,  has  been  much  discussed  by  writers  on  the  law  of 
nations  and  in  the  English  and  American  courts  of  justice.  The 
statements  of  Chancellor  Kent,  in  his  recent  Commentaries  on  (726) 
American  Law.  (vol.  1,  sec.  2,)  are  fully  supported  by  the  text 
books  and  decisions  to  which  he  refers;  and  I  therefore  take  the 
liberty  of  quoting  them,  as  expressing  my  own  opinion  on  this  point. 

"If  any  consul  be  guilty  of  illegal  or  improper  conduct,  he  is 
liable  to  have  his  exequatur  for  a  written  recognition  of  his  character) 
revoked,  and  to  be  punished  according  to  the  laws  of  the  country  in 
which  he  is  consul ;  or  he  may  be  sent  back  to  his  own  country,  at  the 
discretion  of  the  government  which  he  has  offended. 

"A  consul  is  not  such  a  public  minister  as  to  be  entitled  to  the 
privileges  appertaining  to  that  character;  nor  is  he  under  the  special 
protection  of  the  law  of  nations.  He  is  entitled  to  privileges  to  a 
certain  extent,  such  as  for  safe  conduct;  but  he  is  not  entitled  to  the 
jus  gentium.  Vattel  thinks  that  his  functions  require  that  he  should 
be  independent  of  the  ordinary  criminal  jurisdiction  of  the  country; 
and  that  he  ought  not  to  be  molested,  unless  he  violate  the  law  of 
nations  by  some  enormous  crime ;  and  that,  if  guilty  of  any  crime,  he 
ought  to  be  sent  home  to  be  punished.  But  no  such  immunities  have 
been  conferred  on  consuls  by  the  modem  practice  of  nations;  and  it, 

480 


OPINIONS  OF  ATTORNEYS  GENERAL 

may  be  considered  as  settled  law,  that  consuls  do  not  enjoy  the  pro- 
tection of  the  laws  of  nations  any  more  than  any  other  persons  who 
enter  the  country  under  a  safe  conduct.  In  civil  and  criminal  cases, 
they  are  equally  subject  to  the  laws  of  the  country  in  which  they 
reside.  The  same  doctrine,  declared  by  the  public  jurists,  has  been 
frequently  laid  down  in  the  English  and  American  courts  of  justice." 

B.  F.  BUTLER. 
To  the  Secretary  of  State. 


Vol.  III.  p.  405  (Grundy) 

SEIZUEE  FOR  SUSPECTED  INTENTION  TO  PROSECUTE  SLAVE  TRADE 

Attorney  General's  Office, 

January  12,  1839. 

(406)  (Extract)  Sir:  In  this  case,  it  appears  that  Captain 
Howell,  commander  of  the  brig  ''Thomas,  of  Havana,"  entered  the 
port  of  Havana,  and  immediately  reported  to  Mr.  Trist,  United 
States  consul  at  that  place.  The  papers  of  the  vessel  presented  by 
him  to  the  consul  were  evidently  fradulent,  and  not  such  as,  under 
the  laws  of  congress,  would  entitle  his  vessel  to  that  protection  which 
is  due  to  every  vessel  which  in  truth  belongs  to  the  United  States,  and 
sailing  lawfully  under  their  flag.  Under  these  circumstances,  Mr. 
Trist  informed  Captain  McKenney,  commander  of  the  Ontario,  a 
public  vessel  of  the  United  States,  of  these  facts;  and  advised  him 
to  seize  and  detain  the  vessel  until  this  government  could  be  advised 
of  the  facts,  and  direct  what  course  should  be  adopted.  The  advice 
of  Mr.  Trist  was  pursued,  and  Captain  McKenney  took  possession  of 
the  brig  Thomas,  while  in  the  port  of  Havana.  The  vessel  was  of 
Spanish  build,  and  was  manned  entirely  (the  captain  excepted)  by 
foreigners ;  and  the  number  of  men  on  board  was  much  greater  than 
is  usually  employed  in  navigating  a  vessel  of  the  size  of  the  brig 
Thomas.  These  were  circumstances,  in  addition  to  the  fraudulent 
character  of  the  papers,  calculated  to  excite  strong  suspicions  that  the 
vessel  was  destined  for  some  unlawful  enterprise,  and  probably  for 
the  slave  trade. 

A  correspondence  ensued  between  the  Captain  General  of  Cuba 
and  Mr.  Trist,  which  terminated  in  a  friendly  disposition  of  the  ques- 
tion, whether  the  seizure  of  the  vessel  in  the  port  of  Havana  was  a 
violation  of  the  jurisdictional  rights  of  Spain.  Upon  that  point,  now 
adjusted  and  settled,  I  wish  to  be  understood  as  expressing  no  opinion. 

Upon  another  point  which  presents  itself  it  is  proper  that  I  should 
say,  that,  let  the  question  discussed  between  the  Captain  General  of 
Cuba  and  the  consul  of  the  United  States  be  as  it  may,  so  far  as  relates 

481 


Vol.  Ill,  p.  405  (GRUNDY) 

to  Captain  Howell  and  his  vessel  the  proceedings  were  lawful,  and 
Captain  Howell  has  no  cause  of  complaint.  Suppose  the  Spanish 
authorities  had  given  their  consent  to  the  seizure  before  it  was  made; 
then,  what  legal  rights  would  have  been  violated?  None,  that  I  can 
perceive,  (407)  more  than  if  the  seizure  had  been  made  on  the  high 
seas.  In  this  case,  the  consent  of  the  Spanish  authorities  was  not 
obtained  before  the  seizure ;  but  this  could  only  make  the  act  wrong- 
ful, if  the  captain  general  was  correct  in  his  view  of  the  public  law, 
so  far  as  the  Spanish  authorities  and  Spanish  rights  were  concerned. 
It  would  not  make  the  seizure  wrongful,  so  far  as  relates  to  Captain 
Howell  and  his  vessel.  If  an  officer,  in  executing  civil  process,  shall 
break  open  the  house  of  the  defendant  and  arrest  him,  the  officer 
is  subject  to  an  action  and  to  damages  for  breaking  the  house;  but 
the  arrest  is  good. 

I  refrain  from  any  argument  showing  the  inapplicability  of  the 
principles  of  the  public  law  in  reference  to  the  protection  of  vessels 
in  the  ports  or  waters  of  a  friendly  power,  when  that  protection  is 
claimed  by  a  vessel  of  the  United  States  against  their  public  vessels, 
acting  in  conformity  to,  and  in  connection  of,  the  laws  of  congress. 

I  am,  sir,  &c.,  &c,, 

FELIX  GRUNDY. 
To  the  Secretary  of  State. 


Vol.  III.  p.  532  (Gilpin) 

VERIFICATION  IN  FOREIGN  COUNTRIES  OF  APPLICATIONS  FOR 
PATENTS  FOR  INVENTIONS 

Verifications  and  depositions  in  foreign  countries  to  be  made  under  the  pro- 
visions of  the  sixth  section  of  the  act  of  July  4,  1836,  before  patents  can  issue, 
should  not  be  made  before  consuls,  but  before  competent  magistrates  of  the  coun- 
try where  they  shall  be  taken,  and  authenticated  by  the  consul. 

Any  abrogation  of  oaths  in  the  patent  laws  of  England  will  not  affect  the 
question  here;  all  conditions  requisite  to  a  patent  in  this  country  must  be  com- 
plied with  according  to  the  laws  of  congress. 

Attorney  General's  Office, 
May  12,  1840. 
Sir:  I  had  the  honor  to  receive  your  letter  of  the  4th  inst,  en- 
closing a  communication  from  the  Commissioner  of  Patents,  and 
asking  whether,  in  my  opinion,  the  oath  required  to  be  taken  by  an 
applicant,  under  the  provisions  of  the  sixth  section  of  the  act  of  the 
4th  of  July,  1836,  before  a  patent  can  be  issued  to  him,  may  be  ad- 
ministered by  a  consul  of  the  United  States,  and  particularly  the 
consul  who  is  also  an  agent  of  claims  at  Paris. 

482 


OPINIONS  OF  ATTORNEYS  GENERAL 

In  reply,  I  have  to  state  that  I  am  aware  of  no  law  which  con- 
fers on  consuls  the  general  power  of  administering  oaths,  though  they 
are  authorized  to  authenticate  depositions  made  in  foreign  countries. 
I  am,  therefore,  of  the  opinion  that  the  oath  should  not  be  adminis- 
tered by  the  consul,  but  by  a  competent  magistrate  of  the  country 
where  it  is  taken ;  and  that  the  deposition  so  made  should  be  verified 
by  the  official  certificate  or  authentication  of  the  consul. 

The  Commissioner  of  Patents  also  inquires  whether  the  provision 
of  the  act  of  the  4th  of  July,  1836,  above  referred  to,  is  "sufficiently 
complied  with  in  England,  by  a  solemn  declaration"  pursuant  to  the 
act  of  6  William  IV,  entitled  ' '  An  act  to  repeal  an  act  of  the  present 
session  of  parliament,  entitled  'An  act  for  the  more  effectual  aboli- 
tion of  oaths  and  affirmations  taken  and  made  in  the  various  depart- 
ments of  the  state,  and  to  substitute  declarations  in  lieu  thereof,  and 
for  the  more  entire  suppression  of  voluntary  and  extrajudicial  oaths 
and  affidavits;  and  to  make  other  provisions  for  the  abolition  of  un- 
necessary oaths."  I  have  not  seen  the  British  statute  here  referred 
to,  but  presume,  from  its  title,  that  it  substitutes,  in  cer-  (533)  tain 
eases  in  England,  a  declaration  for  the  oath  or  affirmation  previously 
required  by  the  laws  of  that  country.  I  am  of  opinion  that  this 
change  cannot  sanction  any  deviation  from  the  requisitions  of  the  act 
of  congress  above  referred  to,  and  that  the  question  proposed  must  be 
answered  in  the  negative. 

H.  D.  GILPIN. 
To  the  Secretary  of  War. 


Vol.  III.  p.  683  (Legare) 

AID  TO  DISTRESSED  SEAMEN 

Seamen  on  board  vessels  of  war  are  not  entitled  to  pecuniary  assistance  from 
consuls  abroad,  under  the  act  of  28th  February,  1803. 

The  moneys  in  the  hands  of  the  secretary  of  state  were  raised  from  the  wages 
of  merchant  seamen  only,  and  should  be  applied  only  for  the  relief  of  that  class 
of  seamen  which  have  contributed  to  the  fund. 

Office  of  the  Attorney  General, 

Octoler  27,  1841. 
Sir:  In  compliance  with  the  request  contained  in  your  note  of 
the  25th  instant,  that  I  would  give  you  my  opinion  on  the  construc- 
tion of  the  4th  section  of  the  act  of  congress  of  February  28,  1803,  in 
reference  to  the  rendering  pecuniary  assistance  by  the  consuls  abroad 
to  distressed  seamen  left  at  their  consulates  by  United  States  vessels 
of  war,  I  have  the  honor  to  state  that,  after  a  conversation  with  the 
Fifth  Auditor  as  to  the  practice  of  the  department,  and  on  collating 

483 


Vol.  Ill,  p.  683  (LEGARE) 

carefully  all  the  acts  having  reference  to  the  subject  in  question,  1 
have  been  convinced,  notwithstanding  a  strong  first  impression  to 
the  contrarj',  that  the  fund  in  the  hand  of  the  secretary  of  state  is 
appropriated  to  providing  for  destitute  merchant  seamen  only. 

The  act  of  1803  must  be  read  with  the  act  of  1792,  to  which  it  is 
merely  supplementary,  and  with  the  act  of  1814,  (chap.  161,  2  Story, 
1432.)  The  result  is,  that  the  fimd  which  your  department  is  auth- 
orized to  dispose  of  is  charged  with  a  special  trust,  as  it  is  raised  in 
a  special  way — by  deductions  out  of  the  wages  of  merchant  seamen. 
The  public  service  is  subjected  to  rules  of  its  own;  and  the  adminis- 
tration of  it,  throughout  all  its  interests,  is  committed  to  the  secretary 
of  the  nav}'.  The  words  of  the  4th  section  of  the  act  of  1803  are,  it  is 
true,  very  general  and  comprehensive,  but  they  must  be  interpreted 
according  to  the  subject  matter;  and  that  limits  and  qualifies  them  as 
above. 

I  have  the  honor  to  be,  sir,  your  obedient  servant, 

H.  S.  LEGARE. 
Fletcher  Webster,  Esq.,  Acting  Secretary  of  State. 


Vol.  IV.  p.  185  (Nelson) 

OBLIGATION  OF  SHIP-MASTEKS  TO  BRING  HOME  DESTITUTE  SEAMEN 

The  act  of  1803,  requiring  masters  and  commanders  of  vessels  belonging  to 
citizens  of  the  United  States,  and  bound  to  some  port  of  the  same,  to  take,  at  the 
request  of  the  consul,  destitute  seamen  on  board,  and  to  transport  them  to  the 
port  of  the  United  States  to  which  such  vessels  may  be  bound,  is  limited  to  such 
vessels  as  shall  be  bound  from  the  port  where  the  request  is  made,  direct  to  some 
port  of  the  United  States. 

To  require  all  American  vessels  in  foreign  ports,  whether  bound  directly  to 
some  port  of  the  United  States  or  not,  to  receive  destitute  seamen,  would  be  in 
many  cases  very  oppressive  upon  masters  and  owners. 

Attorney  General's  Office, 
July  10,  1843. 
Sir:  I  have  carefuly  examined  and  considered  the  provisions 
of  the  act  of  the  28th  of  February,  1803,  and  the  letter  of  the  United 
States  consul  at  Valparaiso,  respecting  the  refusal  of  Captain  Theo- 
dore Perry,  master  of  the  brig  "Phillip  Hone,"  to  receive  on  board 
of  said  bring  two  destitute  American  seamen  to  be  conveyed  to  the 
United  States,  transmitted  to  me  on  the  8th  instant,  upon  which  you 

desire  my  opinion whether,  first,  it  is  the  intention  of  the  law  that 

masters  of  vessels  should  be  required  to  transport  destitute  American 
seamen,  as  provided  by  said  act,  only  when  such  vessels  are  bound  di- 
rect to  some  port  of  the  United  States?  and,  secondly,  whether,  under 

484 


OPINIONS  OF  ATTORNEYS  GENERAL 

circumstances  such  as  those  attending  the  refusal  of  Captain  Perry, 
they  are  not  under  an  obligation  to  comply  with  the  consul's  request? 

The  4th  section  of  the  act  of  1803  was  designed  to  supply  the  7th 
section  of  the  act  of  1792,  ch.  94,  to  provide  a  compensation  to  masters 
who  should  be  required  to  perform  the  duties  it  imposes,  which  the 
act  of  1792  did  not  afford,  and  to  fortify  (186)  the  sanction  by  which 
it  was  to  be  enforced,  by  an  increase  of  the  penalty  demanded  for  its 
violation.  The  only  other  act  of  congress  relating  to  the  subject  is 
that  of  1811,  ch.  95,  which  provides  for  the  allowance  by  the  comptrol- 
ler in  certain  cases  of  additional  compensation. 

I  do  not  find  that  these  provisions  have  been  at  any  time  the  sub- 
ject of  judicial  examination;  the  answers  to  your  inquiries  must, 
therefore,  be  sought  in  the  terms  of  the  laws  referred  to.  These  I 
think  susceptible  of  but  one  interpretation.  The  language  of  the  act 
of  1803,  borrowed  from  that  of  1792,  is,  that  all  masters  and  command^ 
ers  of  vessels  belonging  to  citizens  of  the  United  States,  and  bound  to 
some  port  of  the  same,  are  required  and  enjoined  to  take  such  mariners 
or  seamen  on  board  of  their  ships  or  vessels  at  the  request  of  the 
said  consuls,  &c.,  and  to  transport  them  to  the  port  of  the  United 
States  to  which  such  ships  or  vessels  may  be  bound,  &c.  The  act  does 
not  impose  the  duty  of  transportation  upon  every  American  vessel 
found  in  a  foreign  port.  For  obvious  reasons,  such  a  requirement 
might,  under  many  circumstances,  operate  the  most  oppressive  in- 
convenience upon  masters  and  owners.  But  the  provision  is  limited 
in  its  application  to  such  vessels  found  in  a  foreign  port  as  shall  be- 
long to  citizens  of  the  United  States,  and  as  shall  be  bound  to  some 
port  thereof.  Bound  whence?  From  the  port  at  which  such  vessel 
may  be  found — not  from  a  port  to  which  she  may  be  first  bound — 
and  thence  to  some  port  of  the  United  States.  Such  a  construction 
would  apply  the  provisions  of  the  act  to  every  vessel  belonging  to 
citizens  of  the  United  States  whereever  bound,  if  destined  ultimately 
to  return  home. 

I  am  of  the  opinion,  therefore,  that  the  act  of  1803  does  not  re- 
quire that  masters  of  vessels  should  transport  destitute  American 
seamen,  except  in  eases  in  which  such  vessels  are  bound  direct  to  some 
port  of  the  United  States. 

The  second  inquiry,  as  to  the  particular  case  of  Captain  Perry 
and  the  extent  of  his  obligations,  it  is  not  easy  satisfactorily  to  answer, 
because  of  the  defect  in  the  information  upon  which  it  is  suggested. 
The  circumstances  connected  with  his  refusal  are  so  generally  stated, 
as  to  render  it  difficult  to  determine  whether  the  voyage  to  Coquimbo 
was  merely  colorable  or  (187)  contemplated  in  good  faith,  and 
whether  it  was  an  intermediate  port  at  which  the  vessel  was  to  touch 

485 


Vol.  IV.  p.  185  (NELSON) 

or  call,  or  a  port  of  bona  fide  destination.  It  is  quite  clear  that  in 
the  one  case  the  duty  of  the  master  would  have  been  to  transport 
the  seamen ;  in  the  other,  if  my  answer  to  your  first  question  be  right, 
the  law  imposed  on  him  no  such  obligation. 

Under  all  the  circumstances  of  the  case,  I  would  respectfully 
suggest  that  the  transaction  offers  an  occasion  which  may  be  advan- 
tageously embraced  by  an  appeal  to  the  judicial  department  of  the 
government  to  settle  the  construction  of  a  law,  upon  the  rigid  enforce- 
ment of  which  many  and  important  interests  depend. 

I  have  the  honor  to  be,  sir,  your  obedient  servant, 

JOHN  NELSON. 
Hoti.  A.  P.  Upshur,  Secretary  of  State. 


Vol.  IV.  p.  390  (Mason) 

SHIP-MASTERS   ABROAD— WHEN    TO    DEPOSIT   REGISTERS    WITH 

CONSUL 

The  2d  section  of  the  act  of  28th  February,  1803,  does  not  require  the  papers 
of  an  American  vessel  in  a  foreign  port  to  be  delivered  to  the  consul,  except  in 
cases  where  it  is  necessary  to  make  an  entry  at  the  custom-house. 

A  requisition  of  a  deposit  of  papers,  in  all  cases  of  arrival  vFhere,  by  the 
local  laws,  an  entry  is  not  necessary,  and  where  there  is  no  trading  or  purpose  to 
trade,  might  add  to  consular  emoluments,  but  would  be  embarrassing  to  the  in- 
terests of  navigation. 

Attorney  General's  Office, 
June  11,  1845. 
Sir:  I  have  had  the  honor  to  receive  your  communication  of 
the  16th  April  last,  with  a  letter  from  the  United  States  consul  at 
Nassau,  asking  my  opinion  on  the  question  presented  by  the  consul. 
He  states  that  his  instructions  to  his  agents  have  been  to  this  effect: 
"That  any  voluntary  arrival  at  their  ports  obliges  the  master  of  the 
ves.sel,  upon  his  arrival,  to  deposit  his  register,  whether  such  arrival 
be  for  advices  or  not,  or  whether  the  vessel  comes  to  an  entry  or  not, 
and  without  respect  to  her  remaining  twenty-four  hours,  or  any  de- 
finite time  or  not."  And  the  question  presented  for  consideration  is, 
are  those  instructions  warranted  by  law?  By  the  2d  section  of  the 
act  of  28th  February,  1803,  it  is  made  the  duty  of  every  master  of 
a  vessel  belonging  to  citizens  of  the  United  States,  who  shall  sail 
from  any  port  of  the  United  States,  on  his  arrival  at  a  foreign  port, 
to  deposit  his  register,  sea-letter,  or  Mediterranean  passport,  with  the 
consul,  vice-consul,  or  commercial  agent,  if  any  there  be  at  such  port. 
In  case  of  refusal  or  neglect,  he  is  subjected  to  a  penalty  of  five  hun- 
dred dollars.  And  the  same  section  makes  it  the  duty  of  such  consul, 
vice-consul,  or  commercial  agent,  on  such  master  or  commander  pro- 

486 


OPINIONS  OF  ATTORNEYS  GENERAL 

ducing  to  him  a  clearance  from  the  proper  officer  of  the  port  where 
his  ship  or  vessel  may  be,  to  deliver  to  the  said  master  or  commander 
all  of  his  said  papers. 

Taking  the  whole  section  together,  it  is  very  obvious  that  con- 
gress required  the  papers  of  an  American  vessel  in  a  foreign  port  to 
be  delivered  to  the  consul  only  where  it  was  necessary  to  make  an 
entry  at  the  custom  house.  It  is  on  the  master's  producing  a  clear- 
ance, that  the  consul  is  to  return  from  him  his  pa-  (391)  pers;  and 
there  can  be  no  clearance  where  there  is  no  entry.  If  an  American 
vessel  arrive  at  her  port  of  discharge,  or  for  any  reason  other  than 
the  purpose  of  trading  with  the  whole  or  portion  of  her  cargo,  she 
shall  remain  so  long  as,  by  the  law  of  the  country,  to  require  it,  she 
must  enter  at  the  customhouse  of  such  port;  and,  in  all  such  cases, 
the  master  must  deposit  his  register.  But  the  law  does  not  extend 
the  duty  beyond  this.  A  requisition  of  a  deposit  of  papers,  in  all 
cases  of  arrival  where,  by  the  local  laws,  an  entry  is  not  necessary, 
and  where  there  is  no  trading  or  purpose  to  trade,  might  add  to  con- 
sular emoluments,  but  would  prove  extremely  embarrassing  to  the 
navigating  interest.  The  object  of  the  law  is  to  compel  masters  of 
vessels  belonging  to  American  owners,  sailing  from  American  ports, 
to  respect  our  own  laws,  and  those  of  the  foreign  countries  to  whose 
ports  they  may  go  for  the  purpose  of  trade;  and  this  object  is  at- 
tained by  requiring  them  to  exhibit  the  evidences  of  their  being  law- 
ful traders  to  our  consuls  at  the  ports  where  they  have  to  enter. 
Beyond  this,  neither  the  law  nor  good  policy  requires  that  their 
duty  shall  extend. 

I  have  the  honor  to  be,  respectfully,  sir,  your  obedient  servant, 

J.  Y.  MASON. 
Hon.  James  Buchanan,  Secretary  of  State. 


Vol.  V.  p.  161  (Johnson) 

WHEN  SHIP-MASTERS  ARE  REQUIRED  TO  DEPOSIT  REGISTERS  WITH 

CONSULS 

Masters  of  American  vessels  entering  foreign  ports  where  there  shall  be  an 
American  consul,  and  remaining  so  long  as  that,  by  the  local  regulations,  they 
are  required  to  enter,  and  afterwards  to  clear  in  regular  form,  are  required  to  de- 
posit their  registers,  &c.,  with  such  consul,  irrespective  of  the  purpose  for  which  the 
port  shall  have  been  entered.  (See  opinion  on  this  subject  delivered  by  Attorney 
General  Mason  on  the  11th  of  June,  1845.) 

Attorney  General's  Office, 

September  26,  1849. 
Sir:     The  question  you  have  submitted  to  this  office,  upon  the 
letter  of  F.  H.  Whitmore,  Esq.,  of  New  Haven,  Connecticut,  of  the 

487 


Vol.  V,  p.  161  (JOHNSON) 

10th  September,  1849,  "respecting  the  demand  made  by  the  United 
States  commercial  agent  at  St.  Thomas,  in  all  cases  of  the  arrival  at 
that  port  of  an  American  vessel,  whether  business  is  or  is  not  done 
by  hor.  that  the  register,  &c.,  be  deposited  with  him,"  I  have  con- 
sidered. 

The  legality  of  the  demand  depends  upon  the  proper  construction 
of  the  2d  section  of  the  act  of  congress  of  the  28th  February,  1803, 
"supplementary  to  the  act  concerning  con-  (162)  suls  and  vice-con- 
suls, and  for  the  further  protection  of  American  seamen."  (2  statutes 
at  large,  203.) 

By  the  words  of  the  first  part  of  the  section,  the  master  of  an 
American  vessel  sailing  from  a  port  in  the  United  States  is  required 
to  deposit  "his  register,  sea-letter,  and  Mediterranean  passport," 
"upon  his  arrival  at  a  foreign  port,"  with  the  American  consul,  &c., 
if  there  be  one  at  such  port.  The  duty,  regarding  this  part  of  the 
section,  only  exists  upon  arrival,  without  reference  to  its  object,  and 
whether  it  be  voluntary  and  for  business,  or  otherwise.  But  the  sub- 
sequent part  qualifies,  I  think,  the  general  words  of  the  first.  It  is 
in  the  provision  that  the  consul,  &c.,  on  the  master's  "producing  a 
clearance  from  the  proper  officer  of  the  port  where  his  ship  or  vessel 
may  be,"  shall  deliver  to  him  "all  of  his  said  papers,"  Construing 
the  two  classes  together,  I  think  the  true  meaning  of  the  whole  is, 
that  there  is  to  be  no  deposit  of  the  papers,  upon  an  arrival,  un- 
less it  be  an  arrival  with  a  view  to  entry,  or  where,  hy  the  local  law, 
an  entry  is  required.  Where  either  exists,  my  opinion  is,  the  deposit 
with  the  consul,  &c.,  is  to  be  made,  and,  of  course,  that  it  is  the  duty 
of  the  consul  to  demand  it. 

It  will  be  seen,  I  think,  that,  in  this  view  of  the  act,  I  but  concur 
in  the  opinion  to  which  you  refer,  of  Mr.  Attorney  General  Mason, 
of  the  11th  of  June,  1845. 

After  quoting  the  section  of  the  act  in  question,  he  says:  "Tak- 
ing the  whole  together,  it  is  very  obvious  that  congress  required  the 
papers,  &c.,  to  be  delivered  to  the  consul  only  when  it  was  necessary 
to  make  an  entry  at  the  custom-house;"  and,  therefore,  "if  an  Amer- 
ican vessel  arrive  at  her  port  of  discharge,  or,  for  any  reason  other 
than  the  purpose  of  trading  with  the  whole  or  portion  of  the  cargo, 
she  shall  remain  so  long  as,  hy  the  law  of  the  country,"  &c.,  ''she  must 
enter  at  the  custom-house  of  such  port,"  and  the  deposit  must  be 
made. 

Interpreting  the  section,  as  I  do,  to  require  the  deposit  only 
when  an  entry  is  to  be  made,  he  makes  it  the  duty  of  the  master,  as  I 
do,  to  deposit,  in  case  of  entry  in  fact,  without  regard  to  the  reason 
or  object  of  its  being  made.     The  motive  for  the  deposit  is,  I  think, 

488 


OPINIONS  OF  ATTORNEYS  GENERAL 

the  same  in  all  cases  of  actual  (163)  entry,  and  the  trouble  and  duty 
of  the  consul,  &c.,the  same.  He  is  in  both  cases  to  take  charge  of  the 
vessel's  papers,  and  to  hold  them  until  she  is  again  cleared;  and,  for 
the  trouble  of  receiving,  preserving,  and  delivering  them,  (of  each  of 
which  acts  he  is  to  give  a  certificate  under  seal,)  he  is  entitled  to 
charge  two  dollars.  (See  chapter  8,  section  7,  of  General  Instruc- 
tions to  Consuls,  of  the  6th  June,  1849.) 

The  result,  then,  to  which  I  come,  is  this:  that  the  commercial 
agent  at  St.  Thomas,  in  the  case  of  all  American  vessels  arriving 
there,  and  remaining  so  long  as,  by  the  local  regulation,  to  be  obliged 
to  enter  and  afterward  to  clear,  is  entitled,  and  it  is  his  duty  to  de- 
mand the  surrender  of  their  papers,  imder  the  act  of  1803,  no  matter 
what  may  be  the  motive  of  the  entry,  whether  business  or  not. 
I  have  the  honor  to  be,  very  respectfully,  sir,  your  obedient  servant, 

REVERDY  JOHNSON. 
Hon.  John  M.  Clayton,  Secretary  of  State. 


Vol.  VI,  p.  617  (Gushing) 

POWEES  OF  CONSULS— LIABILITIES  OF  THE  UNITED  STATES 

Consuls  have  no  authority  to  order  the  sale  of  a  ship  in  a  foreign  port, 
either  on  complaint  of  the  crew  or  otherwise. 

If,  on  such  sale,  a  consul  retains  money  for  the  payment  of  seamen's  wages, 
he  acts  at  his  own  peril,  and  is  responsible  to  the  owners. 

The  United  States  are  not  responsible  in  damages  for  moneys  illegally  re- 
ceived by  consuls,  or  for  any  other  act  of  malfeasance  of  theirs  in  office. 

Attorney  General's  Office, 
July  24,  1854. 

Sir:  Your  letter  of  the  12th  inst.  calls  for  my  opinion  of  the 
acts  of  February  28th,  1803,  and  July  20th,  1840,  in  relation  to  the 
powers  and  the  duties  of  consuls  of  the  United  States,  as  applied  to 
the  case  of  the  bark  "Serene,"  sold  by  the  order  of  the  consul  at 
Acapulco. 

This  act  of  February,  1803,  (ii  Stat,  at  Large,  p.  203,  chap.  9, 
sec.  3,)  makes  it  the  duty  of  the  master  or  commander  of  a  ship  or 
vessel  belonging  to  a  citizen  of  the  United  States,  wliich  "shall  be 

sold  in  a  foreign  country,  and  her  company  discharged,   to 

produce  to  the  consul  or  vice  consul the  list  of  his  ship's 

company,  certified  as  aforesaid,  and  to  pay  to  such  consul  or  vice- 
consul,  for  every  seaman  or  (618)  mariner  discharged,  being 

on  such  list  as  a  citizen  of  the  United  States,  three  months'  pay.  over 
and  above  the  wages  which  may  then  be  due  to  such  mariner  or  sea- 
man, two-thirds  thereof  to  be  paid  by  such  consul to  each 

489 


Vol.  Yl,  p.  617  (GUSHING) 

seaman  or  mariner  so  discharged,  when,  etc., the  other  re- 
maining third  to  be  retained  for  the  purpose  of  creating  a  fimd  for 
the  payment  of  the  passages  of  seamen  or  mariners,  citizens  of  the 
United  States,  who  may  be  desirous  of  returning  to  the  United  States, 
and  for  the  maintenance  of  American  seamen,  who  may  be  destitute, 
and  may  be  in  such  foreign  port," — the  same  to  be  accounted  for 
every  six  months  with  the  secretary  of  the  treasury. 

The  act  of  July  20th,  1840,  entitled  "An  act  in  addition  to  the 
several  acts  regulating  the  shipment  and  discharge  of  seamen  and  the 
duties  of  consuls,"  (Vol.  v  of  Stat,  at  Large,  p.  396,  chap.  48,  article 
12th,)  provides,  "If  the  first  officer,  or  any  officer,  and  a  majority 
of  the  crew  of  any  vessel  shall  make  complaint  in  writing  that  she  is 
in  unsuitable  condition  to  go  to  sea,  because  she  is  leaky  or  insufficient- 
ly supplied  with  sails,  etc.,  or  the  crew  is  insufficient  to  man  her,  or 
that  her  provisions  are  not  or  have  not  been  during  the  voyage,  suf- 
ficient and  wholesome,  thereupon  the  consul  or  commercial  agent, 
in  any  of  these  or  like  cases,  shall  appoint  two  disinterested,  compe- 
tent, practical  men.  acquainted  with  maritime  affairs,  to  examine  into 
the  causes  of  complaint,  who  shall  in  their  report  state  what  defects 
and  deficiences,  if  any,  they  find  to  be  well  founded,  as  well  as  what 
ought  to  be  done,  in  their  judgment,  to  put  the  vessel  in  order  for  the 
continuance  of  the  voyage." 

Art.  13th  gives  the  inspectors  full  power  to  examine  the  vessel, 
and  also  to  hear  and  receive  any  other  proofs,  and  the  consul,  upon 
view  of  the  report  of  the  inspectors  so  appointed,  may  approve  the 
whole,  or  any  part  of  the  report.  If  he  approve  he  shall  so  certify; 
if  he  dissent,  he  shall  certify  his  reasons  for  so  dissenting. 

Art.  14.  "The  inspectors  in  their  report  shall  also  state  whether, 
in  their  opinion,  the  vessel  was  sent  to  sea  unsuitably  provided  in  any 
important  or  essential  particular,  by  neglect  or  design,  or  through 
mi.stake  or  accident,  and  in  case  it  was  by  neglect  or  design,  and  the 
consul  or  other  commercial  agent  ap-  (619)  proved  of  such  finding, 
he  shall  discharge  such  of  the  crew  as  require  it,  each  of  whom  shall 
be  entitled  to  three  months'  pay  in  addition  to  his  wages  to  the  time 
of  the  discharge;  but  if,  in  the  opinion  of  the  inspectors,  the  de- 
ficiences found  to  exist  have  been  the  result  of  mistake  or  accident, 
and  could  not  in  the  exercise  of  ordinary  care  have  been  known  and 
provided  against  before  the  sailing  of  the  vessel,  and  the  master  shall, 
in  a  reasonable  time,  remove  or  remedy  the  causes  of  complaint,  then 
the  crew  shall  remain  and  discharge  their  duty;  otherwise  they  shall, 
upon  their  request,  be  discharged,  and  receive  each  one  month's 
wages  in  addition  to  the  pay  up  to  the  time  of  discharge." 

By  the  papers  accompanying  your  letter,  it  appears  that  the 

490 


OPINIONS  OF  ATTORNEYS  GENERAL 

American  bark  "Serene,"  Phineas  Windsor,  master,  of  332  44-95  tons 
burthen,  sailed  from  San  Francisco,  in  the  state  of  California,  on  the 
23d  of  March,  1854,  for  San  Bias,  in  the  republic  of  Mexico,  laden 
with  a  cargo  of  quicksilver,  thence,  after  discharging  her  cargo,  she 
sailed  to  Ypala,  in  that  republic,  and  there  took  in  a  full  cargo  of 
Brazil  wood,  and  thence  cleared  and  sailed  on  the  2d  of  May,  bound 
for  Valparaiso,  in  Chile.  The  vessel  at  sea  sprang  a  leak  on  the  6th 
of  May,  and  put  into  Aeapulco  in  distress. 

There,  the  master  went  before  the  American  consul,  Charles  L. 
Denman,  and  made  declaration  and  protest  of  all  the  circumstances; 
which  protest  and  declaration  was  also  verified  by  A.  D.  Stagg,  first 
officer,  T.  W.  Pinkham,  carpenter,  Charles  Foy,  Thomas  Tilson,  and 
John  Chalet,  seamen. 

On  the  12th  of  May,  the  first  and  second  mates,  the  carpenter, 
and  said  three  seamen,  presented  to  the  consul  their  petition  in  writ- 
ing, requesting  him  to  appoint  a  survey  and  examination  of  said  ves- 
sel, and  to  take  such  action  thereon  as  is  provided  by  law. 

The  captain  deposed  that  the  said  petitioners  composed  two-thirds 
of  the  officers  and  crew  of  the  said  vessel  the  "Serene." 

Thereupon  the  consul  appointed  C.  Hayward,  a  sea  captain, 
Thomas  Campbell,  a  ship  carpenter,  and  Lorenzo  Pratt,  a  pilot,  to 
examine  into  the  condition  of  said  vessel,  etc.,  and  make  report. 

They  reported  that  after  discharging  the  cargo,  the  leak  was 
(620)  below  the  water  line,  the  result  of  heavy  seas,  without  fault  of 
the  officers  or  crew;  that  the  vessel  must  be  stripped,  hove  down,  and 
her  copper  taken  off,  in  order  to  [make]  a  thorough  examination  and 
repair ;  that  even  if  she  could  be  repaired  in  the  port  of  Aeapulco,  the 
expense  of  the  delay  would  exceed  the  value  of  the  vessel;  but  that 
she  could  not  be  repaired  in  that  port.  And  the  said  examiners  and 
inspectors  advised  that  the  vessel  be  sold  for  the  benefit  of  all  con- 
cerned, and  that  measures  be  taken  for  the  safety  of  the  cargo:  all 
which  was  sworn  before  the  consul,  who  certified  his  approval  of  the 
report  on  the  20th  of  May,  1854.  The  vessel  was  accordingly  sold 
at  auction  on  the  22d  of  May,  1854,  hy  order  of  the  consul^  and  pro- 
duced the  sum  of  $1332.68. 

The  vessel  being  so  sold,  in  this  foreign  port,  the  consul  paid  out 
of  the  proceeds  to  the  crew,  (whose  wages  were  stated  at  so  much 
per  month  in  the  shipping  articles,)  viz:  To  the  first  and  second 
mates,  the  carpenter,  and  the  five  seamen,  who  composed  the  crew, 
the  sum  of  $286.77,  for  their  wages  up  to  the  22d  of  May,  1854, — and 
took  their  receipts,  severally. — to  the  master,  as  paid  by  the  consul ; — 
and  the  consul  furthermore  gave  his  receipt  to  the  master  for  the 
mva  of  $495,  for  three  months'  wages  to  the  first  and  second  mates, 

491 


Vol.  VI,  p.  617  (GUSHING) 

to  the  carpenter,  and  to  seaman  Chalet,  they  being  the  only  Amer- 
ican citizens  of  the  ship's  roll;  besides  which  the  consul  paid  the 
various  expenses  of  the  survey  of  the  vessel  and  sale  in  the  port  of 
Acapulco,  amounting,  in  wages  and  expenses,  to  the  full  proceeds  of 
the  sale. 

There  was  insurance  upon  the  vessel,  but  none  on  the  cargo.  The 
assurers  refuse  to  pay  the  wages,  because,  they  say,  no  wages  were 
earned  by  reason  of  the  disaster  before  the  vessel  arrived  at  Valpa- 
raiso, whereby  the  voyage  was  broken  up, — the  vessel  being  condemned 
and  sold,  by  order  of  the  consul,  and  not  by  voluntary  abandonment 
and  sale  by  the  master. 

Thereupon  the  master  inquires — 

1st.     "Whether  the  wages  were  due  ? 

2d.  "Whether  the  government  will  refund  the  money  illegally  re- 
ceived by  the  consul  ? 

1.  The  first  question  is  divisible — 1st,  as  to  the  wages  upon 
(621)  the  voyage  from  the  port  of  San  Francisco  to  the  port  of  San 
Bias;  2d,  as  to  the  wages  on  the  voyage  from  San  Bias  or  Ypala  to 
Valparaiso. 

Seamen  in  merchant  ships  are  usually  hired  at  a  certain  sum, 
either  by  the  month,  or  for  the  voyage.  In  the  former  mode,  the  sum 
of  wages  depends  upon  the  length  of  the  voyage;  in  the  latter  case 
it  is  fixed  invariably  without  regard  to  the  duration  of  the  voyage. 
In  this  case,  it  appears  the  sum  of  wages  depended  upon  the  duration 
of  the  voyage,  being  rated  by  the  month. 

The  general  rule  is  that  the  wages  of  seamen  on  board  of  mer- 
chant ships  are  payable  out  of  the  earnings  for  freight;  and  if  no 
freight  is  earned  by  reason  of  the  perils  of  the  sea,  or  capture  by 
the  enemy,  and  not  by  the  fault  or  neglect  of  the  master  or  owner,  no 
wages  are  due.  Freight  is  the  mother  of  wages.  (Hernaman  v. 
Bawden,  etc.,  iii  Burr.  3844;  Abemethey  v.  Sandale,  ii  Douglass,  542.) 

But  it  seems  to  be  settled  that,  where  a  voyage  is  divided  by  vari- 
ous ports  of  delivery,  a  claim  for  proportional  wages  attaches  at  each 
of  such  i)orts  of  delivery,  upon  safe  arrival,  and  that  all  attempts  to 
evade  or  invade  that  title,  by  renunciations  obtained  from  the  mari- 
ners without  any  consideration,  by  collateral  bonds,  or  by  contracts 
inserted  in  the  body  of  the  shipping  articles,  not  usual,  not  fully  ex- 
plained to  these  illiterate  and  inexperienced  persons,  are  ineffectual 
and  void.  (Anonymous,  1.  Ld.  Raym.  639,  and  also  Anon.,  Ibid. 
739;  Com\T3s'  Dig.,  Merchant  (F.  2.)  4th  edit.  vol.  5,  p.  56;  the  Two 
Catherines,  2  Mason's  Circuit  Court  Rep.  319-329;  Thompson  v.  Faus- 
sat,  1  Peters'  Cir.  Ct.  Rep.  182;  Judge  "Winchester's  decisions,  re- 


OPINIONS  OF  ATTORNEYS  GENERAL 

ported  in  note  to  Relf  v.  The  Maria,  1  Peters'  Admiralty  Rep.  186; 
Crammer  v.  Gemon,  2  Peters'  Adm.  Rep.  390;  Kent's  Comm.  vol.  iii, 
p.  190-191,  Lecture  46,  Abbott  on  Shipping,  part  iv,  chap.  2,  p.  417, 
and  note  2 ;  Moore  v.  Jones,  xv  Mass.  Rep.  424 ;  Hooper  v.  Perley,  xi 
Mass.  Rep.  545;  Swift  v.  Clark,  xv  Mass.  Rep.173.) 

The  principles  of  these  decisions  entitle  the  crew  of  the  "Serene" 
to  wages  up  to  the  time  she  sailed  from  Ypala,  after  having  discharged 
her  cargo  to  San  Bias. 

(622)  But  they  were  not,  because  of  the  voyage  to  Valparaiso 
being  broken  up,  entitled  to  wages  from  and  after  the  time  the  vessel 
sailed  from  Ypala. 

Next,  as  to  the  three  months'  wages,  charged  because  of  the 
proceedings  and  sale  so  ordered  by  consul  at  Acapulco. 

The  act  of  the  28th  of  February,  1803,  applies  only  to  voluntary 
sales  by  the  master  in  foreign  ports,  or  by  the  owners,  and  not  to  a 
case  where  a  sale  is  rendered  necessary  by  a  shipwreck.  (The  Dawn, 
Ware,  488;  Pool  v.  Welsh,  Gilpin,  193;  Abbott  on  Shipping,  p.  193, 
note  1;  The  Saratoga,  2  Gallison,  181.) 

In  its  12th,  13th,  and  14th  articles,  the  act  of  20th  July,  1840, 
applies  to  a  case  where  a  vessel,  having  arrived  at  a  foreign  port,  is 
about  to  sail  thence  on  another  or  continuous  voyage,  and  the  crew 
apprehend  that  their  lives  will  be  endangered  because  of  her  unsuit- 
able condition  to  go  to  sea,  and  make  complaint  to  the  consul  of  such 
intention  to  go  to  sea  in  an  improper  and  unsuitable  condition, — 
*  *  because  she  is  leaky ;  or  insufficiently  supplied  with  sails,  rigging, 
anchors,  or  any  other  equipment;  or  that  the  crew  is  insufficient  to 
man  her;  or  that  her  provisions,  "stores  and  supplies  are  not,  or  have 
not  been  during  the  voyage,  sufficient  and  wholesome." 

Upon  complaint  in  any  of  these  or  like  cases,  the  consul  shall 
appoint  fit  persons  "to  examine  into  the  causes  of  complaint;"  to 
examine  the  vessel,  and  whatever  is  on  board,  and  to  receive  any  other 
proof. 

The  examiners  are  to  state  whether,  in  their  opinion,  "the  vessel 
was  sent  to  sea  unsuitably  provided  in  any  important  or  essential  par- 
ticular, by  neglect  or  design."  If  the  inspectors  find  any  complaint 
"well  founded;"  they  are  to  state  what  ought  to  be  done  "to  put  the 
vessel  in  order  for  the  continuance  of  her  voyage."  They  have  no 
authority  to  report  a  sale;  the  crew  have  no  authority  to  ask  a  sale; 
this  act  gives  no  authority  to  the  consul  to  order  a  sale  of  the  vessel. 

By  the  14th  article  of  this  act,  if  the  examiners  report  that  "the 
vessel  was  sent  to  sea  imsuitably  provided  in  any  important  or  essen- 
tial particular,  by  neglect  or  design,  "and  the  (623)  consul  approves 
of  such  finding,  "he  shall  discharge  such  of  the  crew  as  require  it. 

493 


Vol.  VI,  p.  617  (GUSHING) 

In  such  case  of  neglect  or  design,  the  crew,  discharged  upon  such 
ground,  are  each  entitled  to  three  months'  pay,  in  addition  to  his 
wages  up  to  the  time  of  the  discharge." 

If  the  deficiency  complained  of  by  the  crew  is  reported  by  the 
examiners  to  have  been  ''the  result  of  mistake  or  accident,  and  could 
not,  in  the  exercise  of  ordinary  care,  have  been  known  and  provided 
a*"  '  ^t  before  the  sailing  of  the  vessel,  and  the  master  shall  in  a 
^csonable  time  remove  or  remedy  the  causes  of  complaint,  then  the 
crew  shall  remain  and  discharge  their  duty."  But  if  the  master  does 
not,  in  a  reasonable  time,  remove  or  remedy  the  causes  of  complaint, 
then  the  crew  shall,  upon  request,  be  discharged;  and  in  this  latter 
case  they  shall  receive  each  "one  month's  wages  in  addition  to  the 
pay  up  to  the  time  of  the  discharge. ' ' 

This  act  has  not  deprived  owners  and  masters  of  vessels  of  the 
right  to  consult  their  own  interests,  in  selling  or  not  selling;  it  has 
not  subjected  vessels  to  consular  orders  of  sale  because  of  such  vessels 
having,  in  their  voyages,  sprung  a  leak  and  put  into  the  nearest  port 
for  safety. 

It  intends  to  redress  the  just  complaints  of  the  crews  of  vessels 
in  foreign  ports  against  being  compelled  to  risk  their  lives  in  vessels 
about  to  go  to  sea  in  unsuitable,  unsafe  conditions;  to  hear  and  re- 
dress the  just  complaints  of  mariners  against  being  exposed  to  peril 
by  the  neglect  or  design  of  masters  and  owners,  or  by  their  mistakes 
or  accidental  omissions.  If  the  complaint  exhibited  to  the  consul, 
upon  examination,  is  found  to  be  just  and  to  have  been  the  result  of 
neglect  or  design,  then  the  mode  and  measure  of  redress  are  pointed 
out,  the  crew  may  be  discharged  from  further  service,  and  have 
three  months'  pay  in  addition  to  his  wages  up  to  the  time  of  dis- 
charge." If  the  complaint  is  found  to  be  true,  but  to  have  been  the 
result  of  mistake  or  accident,  the  act  points  out  the  mode  and  measure 
of  redress.  ' '  The  master  shall  in  a  reasonable  time  remove  or  remedy 
the  causes  of  complaint,  and  then  the  crew  shall  remain  and  discharge 
their  duty.  But  if  the  master  shall  not  in  a  reason-  (624)  able  time 
remove  or  remedy  the  causes  of  complaint,  then  the  crew,  upon  their 
request,  shall  be  discharged,  "and  receive  each  one  month's  wages  in 
addition  to  the  pay  up  to  the  time  of  discharge." 

The  powers  of  the  consul  are  confined  to  the  examination  of  com- 
plaints of  the  crew  against  the  master,  as  that  he  is  about  to  take  the 
crew  to  .sea  in  a  vessel,  which  is  "in  an  unsuitable  condition  to  go  to 
sea,  becau.se  she  is  leaky  or  insufficiently  supplied  "with  sails,  rigging, 
etc. — "or  that  the  crew  is  insufficient,"  or  that  her  "provisions, 
stores,  and  supplies  are  not,  or  have  not  been,  during  the  voyage, 
sufficient   and   wholesome."     The   powers   of  the   consul  extend  no 

494 


OPINIONS  OF  ATTORNEYS  GENERAL 

further  than  to  discharge  the  crew  with  their  extra  wages  in  addition 
to  the  pay  up  to  the  time  of  discharge. 

That  a  vessel  is  about  to  sail  out  of  port  in  a  leaky  condition, 
is  a  just  cause  of  complaint  by  the  crew,  which  the  master  may  be 
directed  to  remove  or  redress  in  a  reasonable  time;  but  it  is  no  just 
cause  of  complaint  against  master  or  owners  that,  by  the  straining 
of  the  vessel  in  heavy  seas,  she  has  sprung  a  leak. 

Upon  due  examination  of  this  act,  it  cannot  be  tortured  into  an 
authority  to  the  crew  of  the  vessel  to  lodge  complaint  against  the  mas- 
ter, because  the  vessel  has  sprung  a  leak,  by  reason  of  her  laboring  in 
heavy  seas,  and  has,  therefore,  to  put  into  the  nearest  port  for  safety. 

In  this  case,  the  crew  themselves  deposed  before  the  consul  that 
the  leak  was  caused  at  sea,  while  the  vessel  was  on  her  voyage,  by 
heavy  rolling  seas,  and  ''not  to  be  attributed  to  any  insufficiency  of 
the  said  bark,  or  default  of  him,  the  said  master,  his  officers  and  crew." 
And  yet,  after  these  affidavits  before  the  consul,  showing  the  cause 
of  the  disaster,  and  why  the  vessel  could  not  proceed  to  Valparaiso, 
but  was  by  distress  compelled  to  put  into  the  harbor  at  Acapulco,  the 
consul  entertained  the  mere  application  of  the  crew  for  a  survey  to 
examine  into  the  condition  of  the  bark,  without  a  solitary  complaint 
against  the  master  or  o\^^lers;  and  after  the  examiners  had  reported 
that  the  leak  "was  the  result  of,  or  occasioned  by,  heavy  seas,  and  that 
no  fault  can  be  attributed  to  her  officers  or  (625)  crew,  as  she  appears 
to  have  been  well  provided  with  all  things  necessary  for  her  voyage," 
the  consul  ordered  a  sale  of  the  vessel  at  auction ;  and  then  distributed 
the  proceeds,  all  of  which,  by  his  account  rendered,  were  swallowed  up 
by  expenses  and  three  months'  wages  to  the  crew  in  addition  to  their 
pay  to  the  time  of  the  sale. 

The  act  of  1840  does  not  change  the  general  principle  of  the 
maritime  law,  that  seamen's  wages  are  not  due  for  a  voyage  not  per- 
formed, when  no  freight  has  been  earned,  when  the  voyage  has  been 
broken  up  by  a  disaster  at  sea,  and  when  no  fault  is  attributable  to 
the  master  or  owners. 

Nor  did  it  put  it  into  the  power  of  the  crew,  when  the  vessel 
was  obliged  by  a  leak,  caused  by  the  straining  of  the  vessel  in  heavy 
rolling  seas,  to  put  into  the  nearest  port  for  safety,  and  so  disabled 
from  continuing  the  voyage  imtil  repaired,  to  complain  of  the  master 
for  such  an  event,  cause  the  vessel  to  be  sold,  and  thereby  acquire 
profit  to  themselves  by  the  payment  of  wages  not  earned,  and  the 
further  advance  of  pay  for  three  months  to  come. 

In  my  opinion,  therefore,  the  payment  of  wages  by  the  consul 
to  the  crew  for  the  time  after  the  ship,  having  previously  discharged 
her  cargo  at  San  Bias,  sailed  from  Ypala,  and  down,  to  the  time  of 

495 


Vol.  VI,  p.  617  (GUSHING) 

the  sale,  as  also  the  detention  of  wages  for  three  months  in  addition, 
was  an  illegal  act. 

Indeed,  no  power  is  given  to  the  consul,  by  this  act  of  congress  or 
any  other,  upon  complaint  of  the  crew  or  otherwise,  to  order  a  sale  of 
the  vessel,  and  it  does  not  appear  upon  what  authority  he  assumed 
so  to  do  in  the  present  instance. 

Provision  is  made  by  the  law  or  the  regulations  of  most  countries 
of  Europe  and  America  for  the  case  of  the  ascertained  unseaworth- 
iness of  merchant  ships  on  a  voyage,  and  the  consequent  jurisdiction 
of  the  consul  for  the  disposition  on  security  of  the  property,  and  the 
payment  of  wages  due  the  seamen. 

Thus  the  French  "Code  de  Commerce,"  (art.  237,)  while,  in 
general,  forbidding  the  master  of  a  merchant  vessel  to  sell  her  abroad 
imless  he  have  a  power  of  attorney  from  the  owner,  yet  empowers  him 
to  do  this,  in  case  of  the  innavigability  of  (626)  the  ship  lawfully 
ascertained,  and  with  permission  of  the  consul.  But  it  gives  no  power 
to  the  consul  to  order  the  sale  in  invitum.  (Pardessus,  Droit  Com- 
mercial, tome  vi,  p.  260-261 ;  Moreuil,  Manuel  des  Agents  Consulaires, 
p.  85-86.) 

So,  in  the  consular  regulations  of  Denmark,  the  consul  is  auth- 
orized to  make  sale  of  a  disabled  ship  when  the  owner  has  on  the  spot 
no  agent  or  attorney,  but  not  otherwise;  and  even  then  he  must,  if 
possible,  send  and  obtain  the  consent  of  the  owner.  (DeCussy,  Regle- 
ments  Consulaires,  p.  411.) 

No  act  of  congress  gives  to  an  American  consul  power  to  make  a 
forced  sale  of  a  ship,  because  of  innavigability,  except  that  of  April 
14th,  1792,  which  expressly  excludes  the  authority  of  the  consul  to 
sell  either  ship  or  goods  "when  the  master,  owner,  or  assignee  thereof 
is  present  or  capable  of  taking  possession  of  the  same."  (i  Stat,  at 
Large,  p.  283.) 

Upon  the  face  of  the  documents,  the  sale  was  ordered  by  the  con- 
sul as  of  his  o^vTi  authority.  If  so,  it  was  wholly  illegal,  especially 
the  master,  who  was  part  owner,  being  present.  It  was  possible,  how- 
ever, that  the  master  assented  to,  or  by  some  writing  not  filed  author- 
ized, the  sale ;  for  it  is  a  suspicious  fact  in  this  part  of  the  case,  that 
the  papers  do  not  .show  to  whom  the  sale  was  made,  and  that,  as  al- 
ready intimated,  the  several  surveys,  fees  of  consul,  seamen's  wages, 
and  other  charges,  consumed  all  the  proceeds  of  the  sale  in  the  hands 
of  the  consul. 

As  to  these  and  the  other  acts  of  the  consul,  in  so  far  as  he  may 
have  exceeded  his  authority,  the  United  States  are  not  responsible : — 
excepting  only  that  if,  upon  such  forced  sale  of  the  vessel,  caused  by 
the  consul,  he  has  retained  one-third  of  the  wages  of  the  seamen  as 

496 


OPINIONS  OF  ATTORNEYS  GENERAL 

a  fund  for  the  payment  of  the  passages  of  seamen  citizens  of  the 
United  States  desirous  of  returning  to  the  United  States,  and  for 
the  maintenance  of  American  seamen  who  may  be  destitute, 
as  directed  by  the  3d  section  of  the  act  of  28th  February,  1803, 
in  cases  of  voluntary  sales  of  American  vessels  in  foreign  ports, 
— and  if  he  shall  have  paid  into  the  treasury,  or  legally  expended 
to  the  use  of  the  United  States,  any  portion  of  the  money,  so  received 
by  mistake  and  misconstruction  of  the  law, — then  such  portion  so 
expended  to  the  use  (627)  of  the  United  States,  ought  to  be  refimded 
to  the  owners  of  the  bark  "Serene." 

I  am,  very  respectfully, 

C.  GUSHING. 
Hon.  Wm.  L.  Marcy,  Secretary  of  State. 


Vol.  VII.  p.  18  (Gushing) 
CELEBKATION  OF  MAREIAGES  BY  CONSULS 

Consuls  of  the  United  States  have  no  lawful  authority  as  such  to  solemnize 
marriages  in  countries  comprehended  within  the  pale  of  the  international  public 
law  of  Christendom. 

Secus,  in  countries  not  Christian,  where  by  convention  or  in  fact  the  rights 
of  exterritoriality  are  possessed  by  citizens  of  the  United  States. 

Attorney  General's  Office, 

November  4,  1854. 

Sir :  Your  communication  of  the  3d  instant  states  that  it  is  the 
practice,  to  some  extent,  of  the  consuls  of  the  United  States  abroad  to 
marry  parties,  either  citizens  of  the  United  States  or  not,  and  this 
without  observance  of  the  laws  of  the  particular  place  regarding  mar- 
riage,— and  suggests  the  inquiry  whether  such  marriages  are  valid 
in  the  United  States,  either  as  to  the  personal  status  of  the  parties 
themselves  and  their  issue,  or  as  to  any  of  the  rights  of  property  de- 
pending on  the  matrimonial  relation. 

This  inquiry  belongs  to  international  law  private,  as  distinguished 
from  international  law  public:  that  is  to  say,  it  regards,  not  the  rela- 
tions of  nations  among  themselves,  but  the  relations  of  individuals  to 
the  laws,  civil  or  criminal,  of  different  nations.  (Foelix,  Dr.  Int. 
Prive,  tit.  Prel.) 

The  different  states  of  Christendom  are  combined,  by  religious 
faith,  by  civilization,  by  science  and  art,  by  conventions,  and  by 
usages  or  ideas  of  right  having  the  moral  force  of  law,  into  a  com- 
munity of  nations,  each  politically  sovereign  and  independent  of  the 
other,  but  aU  admitting  much  interchange  of  legal  rights  or  duties. 

497 


Vol.  VII,  p.  18  (GUSHING) 

(Vattel.  Droit  des  Gens,  Prel.  s.  11;  Wheaton's  Elements,  p.  40; 
Garden,  Code  Dip.  de  TEurope,  torn,  i,  Int.  p.  3.) 

As  between  themselves,  the  general  rule  of  public  law  is,  that 
each  independent  state  is  sovereign  in  itself,  and  has  more  or  less 
complete  jurisdiction  of  all  persons  being,  matters  happening,  con- 
tracts made,  or  acts  done,  within  its  own  territory.  (Kluber,  Droit 
des  Gens,  s.  21  and  passim;  Story's  Conflict  of  Laws,  ch.  2.) 

I  say  more  or  less  complete,  because,  although  each  nation 
(19)  possesses  its  territory  as  its  own,  and  exercises  jurisdiction 
within  itself,  not  only  as  to  persons,  whether  subjects  or  foreigners, 
their  acts  and  their  property  therein,  and  in  general  neither  claims 
itself,  nor  concedes  to  others,  external  jurisdiction,  yet  each  yields 
to  the  other  certain  reciprocal  rights  within  itself,  which  are  some- 
times denominated  by  the  civil  law  term  of  servitudes  of  the  public 
law  or  law  of  nations.     (Martens,  Precis,  s.  83.) 

These  pri\ileges,  servitudes,  or  easements  of  public  law  have 
groTNTi  up  either  by  express  convention,  or  by  usage  founded  on  con- 
sent. Per  Ch.  J.  Marshall.  The  Exchange,  vii  Cranch,  p.  136.) 
Among  them  are  the  effect,  which,  in  certain  cases,  one  state  concedes 
to  the  laws  of  another  in  regard  to  contracts  made  in  the  latter,  and 
the  reciprocal  rights  conceded  of  personal  residence  or  commercial 
intercourse,  and  of  the  interchange  of  ministers  and  consuls;  which 
concessions  modify,  to  a  certain  degree,  the  hypothetical  completeness 
of  the  internal  sovereignity  of  each  nation. 

Hence,  in  discussions  of  private  international  right,  the  funda- 
mental and  all-prevading  distinction  between  the  statute  personal, 
or  the  laws  of  one's  own  proper  domicil,  and  the  statute  real,  or  the 
laws  which  are  independent  of  the  person,  and  which  regulate  in  a 
foreign  country  his  acts  or  interests  irrespective  of  his  domicil.  The 
personal  statute  is  transitory,  and  follows  the  person ;  the  real  sta- 
tute is  chiefly  confined  to  things,  which  it  controls  only  in  the  locus 
rei  sitae,  or  the  given  territory.  (Dalloz,  Diet.  Juris,  s.  v.  Loi  Pers. ; 
Proudhon,  Des  Personnes,  tom.  i,  p.  8.) 

To  the  regular  jurisdiction,  however,  of  each  country  over  per- 
sons, things,  and  acts  being  or  done  within  it,  there  exist,  by  re- 
ceived public  law,  certain  absolute  exceptions.  These  exceptions  are 
the  several  cases  of  exterritoriality:  That  is,  the  various  conditions 
in  which  a  person,  though  abroad,  is  exempt  from  the  foreign  juris- 
diction, and  is  deemed  to  be  still  within  the  territory  and  jurisdiction 
of  his  own  country. 

The  doctrine  of  exterritoriality  is  denounced  by  some  speculative 
publicists  as  if  it  were  a  mere  fiction  of  law.  (See  Pinheiro  Ferreira, 
Droit  Public  tom.  ii,  p.  197.)     This  view  of  the  (20)  matter  is  super- 

408 


OPINIONS  OF  ATTORNEYS  GENERAL 

ficial,  for  it  is  only  a  cavil  as  to  the  name ;  and  erroneous,  because  it 
argues  upon  the  name,  and  not  the  thing  which  it  represents. 

The  word  "exterritoriality"  is  a  sufficiently  definite  technical 
designation  for  the  peculiarity  of  legal  condition  already  defined  as 
attaching  to  certain  persons  in  a  foreign  country,  to  wit,  the  case  of 
an  actual  sovereign  of  an  independent  state,  his  person,  suite,  resi- 
dence, and  furniture,  while  he  resides  or  sojourns  peaceably  in  a 
foreign  country;  a  foreign  army,  whether  in  peace  or  war;  a  ship  of 
war  generally,  and  sometimes  a  merchant  ship,  in  a  foreign  port,  and 
either  of  them  on  the  high  seas,  in  all  circumstances;  and  a  foreign 
ambassador.     (Wheaton's  El.,  p.  139.) 

In  all  these  cases,  and  expressly  in  that  of  foreign  ministers,  the 
privilege  of  exterritoriality  extends  to  the  residence  as  well  as  the 
person  of  the  foreign  minister,  and  to  certain  legal  acts  performed  in 
his  presence.  (Vattel,  1.  8,  ch.  7,  8,  9;  Kluber,  s.  204;  Martens, 
Precis,  1.  7,  ch.  5;  Foelix,  liv.  2,  tit.  2,  ch.  2,  s.  4;  Ch.  de  Martens, 
Guide  Diplomatique,  ch.  5.) 

Such  are  the  rights  of  an  ambassador  or  other  foreign  minister. 
But,  although  consuls  are  not  merely  commercial  agents,  as  many 
authors  assert,  (Wicquefort,  Ambos.,  vol.  i,  p.  133;  Bynkersh.  de  P. 
Legat.,  p.  165;  Wildman's  Institutes,  p.  165;)  and  although  they  un- 
doubtedly have  certain  of  the  qualities  and  some  of  the  rights  of  a 
foreign  minister,  (see  De  Cussy,  Reglements  Consulaires,  sec.  7;) 
still  it  is  undeniable  that  they  do  not  enjoy  the  privileges  of  exterri- 
toriality, according  to  the  rules  of  public  law  received  in  the  United 
States.  (Clark  v.  Cretico,  i  Taunton,  106;  The  Anna,  iii  Wheaton, 
446;  United  States  v.  Ravara,  11  Dallas,  297;  Viveash  v.  Becker,  iii 
Maule  &  Sel.  284;  Barbuit's  Case,  Cases  Temp.  Talbot,  281;  Common- 
wealth V.  Kestoff,  V.  Serg.  &  R.  54;  Durand  v.  Halback,  i  Miles,  46; 
Davis  V.  Packhard,  vii  Peters,  276 ;  S.  C,  vi  Wend.  327 ;  S.  C,  x  Wend. 
50;  Flynn  v.  Stoughton,  v.  Barb  S.  C.  R.  115;  State  v.  De  la  Foret 
ii  Nott  &  M.  217 ;  Mannhard  v.  Soderstrom,  i  Bin.  138 ;  Hall  v.  Young, 
iii  Pick.,  80;  Sartori  v.  Hamilton,  i.  Green's  R.  107.) 

In  all  the  adjudged  cases  above  cited,  it  is  either  ex-  (21)  pressly 
ruled,  or  the  point  presented  assumes,  that  consuls  are  subject  to  the 
local  jurisdiction.  The  same  doctrine  is  recognized  in  the  modern 
law  treatises  of  authority,  whether  in  the  United  States  or  in  Great 
Britain.  (Wheaton's  Elements,  p.  293;  i  Kent's  Com.,  p.  43;  i  Wild- 
man's  Inst.,  p.  130;  Flynn 's  Brit.  Consuls,  ch.  5.) 

Notwithstanding  the  somewhat  vague  speculations  of  Vattel  and 
some  other  continental  authors  on  the  question  whether  consuls  are 
quasi  ministers  or  not,  (Vattel,  Droit  des  Gens,  1.  iv.  ch.  8;  De 
Cussy,  Reglements  Consulaires,  sec.  6;  Moreuil,  Agents  Consulaires, 

499 


Vol.  VII,  p.  18  (GUSHING) 

p.  348;  Borel,  Des  Consuls,  ch.  3,)  it  is  now  fuUy  established  by  judi- 
cial decisions  of  the  continent,  and  by  the  opinions  of  the  best  modem 
authorities  there,  that  consuls  do  not  enjoy  the  diplomatic  privileges 
accorded  to  the  ministers  of  foreign  powers ;  that  in  their  personal  af- 
fairs they  are  justiciable  by  the  local  tribunals  for  offences,  and  sub- 
ject to  the  same  recourse  of  execution  as  other  resident  foreigners; 
and  that  thej'  cannot  pretend  to  the  same  personal  inviolability  and 
exemption  from  jurisdiction  as  foreign  ministers  enjoy  by  the  law  of 
nations.  Foelix,  1,  ii,  tit.  2,  chap.  2,  s.  4;  Dalloz,  Die.  de  Jurispr., 
tit.  Agents  Diplomatiques,  no.  35;  Ch.  de  Martens,  Guide  Diplomat., 
s.  83.) 

In  truth,  all  the  obscurity  and  contradiction  as  to  this  point  in 
different  authors  arise  from  the  fact  that  consuls  do  unquestionably 
enjoy  certain  privileges  of  exemption  from  local  and  political  obli- 
gation ;  but  .still  these  privileges  are  limited,  and  fall  very  far  short 
of  the  right  of  exterritoriality.  (Masse,  Droit  Commercial,  torn,  i, 
nos.  438,  439.) 

Thus,  in  the  United  States,  consuls  have  a  right,  by  the  constitu- 
tion, to  the  jurisdiction  of  the  federal  courts  as  against  those  of 
states.  They  are  privileged  from  political  or  military  service,  and 
from  personal  taxation.  In  some  cases  we  have  by  treaty  given  to 
consuls,  when  they  are  not  proprietors  in  the  country,  and  do  not  en- 
gage in  commerce,  a  domiciliary'  and  personal  immunity  beyond  what 
they  possess  by  the  general  public  law ;  and  the  extreme  point  to  which 
these  privileges  have  been  carried  in  any  instance  may  be  seen  in 
the  consular  (22)  convention  of  the  23d  of  February,  1853,  between 
the  United  States  and  France,     (x  Stat,  at  Large,  p.  992.) 

Having  premised  this  explanation  of  the  exact  status  of  consuls 
by  the  law  of  nations,  it  remains  for  me  to  deduce  from  the  general 
doctrine  the  particular  conclusions  applicable  to  the  special  subject 
of  inquiry. 

In  regard  to  the  contract  of  marriage,  the  general  principle  in 
the  United  States  is,  that,  as  between  persons  sui  juris,  marriage  is 
to  be  determined  by  the  law  of  the  place  where  it  is  celebrated.  If 
valid  there,  then,  although  the  parties  be  transient  persons,  and  the 
marriage  not  in  form  or  substance  valid  according  to  the  law  of  their 
domicil,  still  it  is  valid  everywhere: — with  some  exceptions,  perhaps, 
of  questions  of  incest  and  polygamy.  If  invalid  where  celebrated,  it 
is  invalid  everywhere.  (Story's  Conflict  of  Laws,  s.  113;  Bishop  on 
marriage,  s.  125.) 

The  only  exception.s  to  this  last  proposition,  namely,  that  mar- 
riages not  valid  by  the  lex  loci  contractus  are  not  valid  anywhere 
else,  are,  first,  in  favor  of  marriage,  when  parties  are  sojourning  in  a 

500 


OPINIONS  OF  ATTORNEYS  GENERAL 

foreign  country  where  the  law  is  such  that  it  is  impossible  for  them 
to  contract  lawful  marriage  under  it.  Secondly,  in  certain  cases 
in  which,  in  some  foreign  countries,  the  local  law  recognizes  a  mar- 
riage as  valid  when  contracted  according  to  the  law  of  domicil. 
Thirdly,  where  the  law  of  the  country  goes  with  the  parties,  that  is, 
in  the  contingency  of  their  personal  exterritoriality,  as  in  the  case  of 
an  army  and  its  followers  invading  or  taking  possession  of  a  foreign 
country,  (Ruding  v.  Smith,  ii  Hag.  C.  R.,  371;  Huber.  Praelec.  J.  C. 
de  con.  leg.,  i,  tit.  3,  s.  10;  J.  Voet.  in  Dig.  1.  xxii,  tit.  2;)  and,  per- 
haps, of  an  army  in  transitu  through  a  friendly  state,  (Wheaton's  El., 
p.  140,)  and  of  a  foreign  ship  of  war  in  the  ports  of  the  nation,  (The 
Exchange,  vii  Cranch,  p.  136.) 

It  follows  by  necessary  consequence,  save  in  the  excepted  cases 
enumerated,  that  a  marriage,  celebrated  in  any  given  place,  must  be 
celebrated  according  to  the  law  of  the  place,  and  by  a  person  whom 
those  laws  designate,  unless  the  person  by  whom,  or  the  premises 
in  which,  it  is  celebrated,  possess  the  privileges  of  exterritoriality. 
(23)  Therefore  it  may  be,  according  to  the  opinion  of  Lord  Stowell, 
that  the  presence  of  a  foreign  sovereign  sojourning  in  a  friendly 
country,  or  that  of  his  minister  plenipotentiary,  or  the  act  of  a  clergy- 
man in  the  chapel  or  hotel  of  such  sovereign  or  his  ambassador,  may 
give  legality  to  marriage  between  subjects  of  his  or  members  of  his 
suite.  (Ruding  v.  Smith,  ii  Haggard's  C.  R.  371;  Prentiss  v.  Tudor, 
i  Hagg.  C.  R.  136;  i  Burge  on  Col.  &  F.  Laws,  p.  168.) 

But  even  such  right  of  a  foreign  sovereign  or  his  ambassador  to 
celebrate  a  marriage,  if  it  exist,  applies  only  to  his  subjects,  country- 
men or  suite.  Such  persons  would  be  married  according  to  the  law 
of  their  domicil,  or  that  of  the  sovereign  or  ambassador  in  whose  ser- 
vice they  are,  on  the  assumption  that,  for  all  the  purposes  of  legal 
right,  their  domicil  goes  with  them,  and  that  they  are  still  at  home, 
and  in  point  of  law  are  not  in  a  foreign  countiy  where  the  marriage 
is  in  fact  celebrated.  A  marriage,  celebrated  by  such  sovereign  or 
his  ambassador  in  a  foreign  country,  between  citizens  of  that  country, 
or  foreigners  residing  there  or  sojourning  there,  would  derive  no  force 
from  him :  it  would  be  null  and  void,  unless  legal  according  to  the  law 
of  the  place. 

Consuls,  it  is  still  more  evident,  have  no  shadow  of  power  to  cele- 
brate marriage  between  foreigners.  Nor  can  they  between  their 
own  countrymen,  unless  expressly  authorized  by  the  law  of  their 
own  country ;  because,  according  to  the  law  of  nations,  they  have  not 
the  privileges  of  exterritoriality,  like  an  ambassador. 

That  American  consuls  have  no  such  power  is  clear,  because  it 
is  not  given  to  them  by  any  act  of  congress,  nor  by  the  common  law 

501 


Vol.  VII,  p.  18  (GUSHING) 

of  marriage  as  understood  in  the  several  states.  (See  Kent  v.  Bur- 
gess, xi  Simons.  361.)  And  marriage,  in  the  United  States,  is  not 
a  federal  question,  but  one  of  the  resort  of  the  individual  states. 
(Bishop  on  marriage,  passim.)  Hence,  it  is  impossible  for  me  to 
doubt : 

First,  that  marriages  celebrated  by  a  consul  of  the  United  States 
in  any  foreign  country  of  Chritendom,  betwcten  citizens  of  the 
United  States,  would  have  no  legal  effect  here,  save  in  one  (24)  of  the 
exceptional  cases  above  stated  of  its  being  impossible  for  the  parties 
to  marrj'  by  the  lex  loci. 

And,  secondly,  that  marriages  celebrated  by  a  consul  of  the 
United  States,  in  a  foreign  country,  between  parties  not  citizens  of 
the  United  States,  would  have  no  legal  effect  here,  unless  in  case  the 
act  be  recognized  expressly  as  valid  by  the  law  of  the  place  of  con- 
tract. 

In  countries  where  mere  consent  of  the  parties,  followed  by 
copula,  constitutes  marriage,  as  in  Scotland,  (McAdam  v.  Walker,  i 
Dow's  R.  148;  Dalrymple  v.  Dalrymple,  ii  Hagg.  C.  R.  97,)  and  where 
the  presence  and  testimony  of  any  person  whatever  suffice  to  prove  the 
consent,  there  a  marriage  contracted  before  a  foreign  consul  might  be 
valid,  not  because  he  is  consul,  but  because  the  consent  makes  the 
marriage. 

But,  in  most  countries  of  Europe,  specific  forms  of  law  are  to 
be  followed,  without  which  there  can  be  no  valid  marriage ;  and  as  it 
appears  that  the  marriages,  which  the  consuls  of  the  United  States 
have  celebrated  abroad,  have  in  most  cases  been  celebrated  between 
persons  collected  at  some  seaport  for  the  purpose  of  emigration,  and 
who  are  not  only  foreigners  as  regards  the  United  States,  but  foreign- 
ers also  as  regards  the  place  in  which  the  marriage  is  celebrated,  it 
becomes  material  to  consider  the  question,  in  the  sense  of  this  im- 
pediment of  double  alienage,  in  its  relation  to  the  law  matrimonial  of 
the  United  States, 

The  general  rule  of  our  law  is  to  ascribe  validity  to  marriages 
when  they  are  valid  at  the  place  of  celebration. 

If  the  parties  to  the  marriage  are  at  the  time  actually  in  their 
ovm  proper  domicil,  as  in  the  case  of  Spaniards  domiciled  in  Barce- 
lona, and  married  there,  it  is  clear  that  the  local  jurisdiction  is  abso- 
lute and  complete,  and  that  a  consul  of  the  United  States  has  no  more 
right  to  celebrate  a  marriage  between  such  parties  there  than  he  has 
to  undertake  the  duties  of  captain  general. 

Suppose,  however,  that  the  parties  are  foreigners  to  the  foreign 
place,  and  at  the  same  time  not  citizens  of  the  United  States? 

The  other  governments  of  Christendom,  and  especially  those  (25) 

502 


OPINIONS  OF  ATTORNEYS  GENERAL 

of  Europe,  are,  it  is  notorious,  much  more  exacting  and  punctilious 
than  the  United  States  in  the  application  of  their  own  laws  of  personal 
status  to  their  own  subjects  when  absent  from  their  country. 

"VVe  may  not  regard  this  here,  but  they  do  among  themselves; 
and  therefore  it  is  important  to  look  at  the  legal  bearings  of  a 
marriage  celebrated  in  one  European  coimtry  between  the  subjects 
of  some  other  government  of  Europe. 

The  general  rule  there  is,  that  the  civil  obligations  of  a  person 
follow  him  into  a  foreign  country,  save  that  in  some  countries  forms 
are  prescribed,  according  to  which  a  subject  may  relieve  himself  of 
his  allegiance  to  his  natural  sovereign  and  the  consequent  civil  obli- 
gations. It  is  believed  that  many  of  the  persons,  who  emigrate  from 
Europe  to  the  United  States,  have  not  taken  these  preliminary  steps; 
and  therefore,  imtil  they  shall  have  acquired  a  new  domicil  in  the 
United  States,  and  while  they  are  sojourning  in  some  other  foreign 
country  on  their  way  for,  and  previous  to,  their  embarcation,  they 
must  of  necessity  be  still  subject  to  the  law  of  their  domicil  in  so  far 
as  this  law  is  respected  by  the  country  of  their  transit  or  of  their 
temporary  sojourn ;  and  the  question  of  the  validity  of  their  marriage 
there  by  a  foreign  consul  must  depend  on  this  legal  condition  of  the 
parties  in  the  countries  of  Europe. 

In  order  to  appreciate  the  legal  relations  in  Europe  of  a  marriage 
between  parties  foreign  to  the  place  of  marriage,  we  may  take  as  a 
convenient  example,  the  state  of  the  law  in  France. 

In  France,  of  course,  all  Frenchmen  must  conform  to  the  precise 
provisions  of  their  own  law;  nay,  as  a  general  rule,  if  they  marry 
abroad,  still  they  must  observe  certain  of  the  conditions  of  the  Code 
Civil,  in  order  to  give  effect  to  the  marriage  in  France.  (Code  Civil, 
no.  170;  Foelix,  iil>i  supra,  no.  88.) 

In  regard  to  such  foreign  marriages  of  Frenchmen,  it  has  been 
adjudged  by  the  courts  of  that  country,  that, — 

1.  Frenchmen  long  established  in  a  foreign  country,  and  who 
have  reserved  no  habitation  and  have  no  domicil  in  France,  are  not 
held  to  the  forms  of  public  notice  there  required  by  the  Code.  (Dal- 
loz,  Diet.  Jur.,  Mariage,  no.  374.) 

(26)  2.  Generally,  all  acts  appertaining  to  the  civil  condition 
of  Frenchmen  abroad  may  be  proved  by  the  modes  of  proof  practiced 
in  the  foreign  country;  and,  therefore,  a  marriage  may  be  proved  by 
witnesses,  or  by  the  certificate  of  a  diocesan,  when  celebrated  in  a 
foreign  country  where  no  registers  of  civil  condition  exist  conformable 
to  the  Code.     (Dalloz,  ul)i  supra,  nos.  346,  356.) 

3.  There  are  no  differences  of  opinion  as  to  the  point,  that 
Frenchmen  who  marry  abroad  must  conform  to  the  provisions  ol 

503 


Vol.  VII.  p.  18  (GUSHING) 

the  Code  as  to  capacity,  ago,  consent,  and  other  conditions  of  sub- 
stance; but  there  are  contradictory  decisions  and  opinions  as  to  the 
point,  whether  it  be  or  not  essential  to  the  validity  of  such  marriage 
that  there  should  have  been  previous  publication  of  bans  in 
France ;  and  whether,  if  this  be  a  radical  defect,  it  is  curable  or  not, 
(Dalloz,  uhi  supra,  nos.  357,  375;)  because  the  article  of  the  Code 
(no.  170,)  which  legalizes  a  marriage  contracted  between  Frenchmen 
abroad  according  to  the  forms  used  in  the  foreign  country,  adds, — 
provided  (pourvu)  the  marriage  be  preceded  by  the  publication  of 
bans,  and  do  not  contravene  the  other  conditions  of  law,  as  prescribed 
by  the  1st  and  2d  chapters  of  the  5th  title  of  the  Code.  (See  Toullier, 
Droit  Civil  tom.  i,  nos.  576,  579.) 

4.  The  Code  (art.  47  and  48)  provides  that  any  civil  act  of 
Frenchmen  abroad  shall  be  valid  if  it  be  drawn  up  in  pursuance  of 
the  forms  of  the  place,  according  to  the  rule  locus  regit  actum;  or  if 
it  has  been  received  conformably  to  the  laws  by  the  diplomatic  agents 
or  consuls  of  France.  It  has  been  doubted  whether  this  applies  to 
marriage ;  though  the  better  opinion  is  that  it  does.  (Dalloz,  uhi 
supra,  nos.  362,  363;  Toullier,  Droit  Civil,  tom.  i,  no.  360;  Merlin, 
Repert.,  Mariage,  p.  641.)  It  is  said,  however,  that  if  one  of  the 
parties  to  a  marriage  by  a  French  consul  abroad  is  French  and  the 
other  not,  then  the  marriage  is  null,  because  the  consul  has  no  juris- 
diction as  to  the  party  not  French,  and  the  marriage  may  be  attacked 
by  either  party.  (Dalloz,  ubi  supra,  nos.  365,  366.)  In  one  of  the 
cases  where  this  point  was  decided,  the  parties  possessed  an  act  of 
marriage,  with  twenty  years,  cohabitation,  (27)  and  two  children. 
(Proudhon,  Tr.  des  Personnes,  tom.  i,  note  a.) 

5.  Finally,  a  marriage  contracted  in  France  by  a  foreigner 
according  to  the  exterior  forms  prescribed  by  the  law  would  be  null, 
of  intrinsic  nullity,  if  the  foreigner  infringed  any  of  the  prohibitions 
of  his  statute  personal ;  that  is.  of  the  personal  law  of  his  domicil. 
(Foelix,  ubi  supra,  s.  88.) 

These  views  might  be  extended  in  detail  to  other  countries  of 
Europe. 

Thus,  in  the  Dutch  Netherlands,  in  addition  to  the  conditions  of 
competency  and  of  publication  of  bans,  there  must  be  legal  contract 
before  the  proper  magistrate,  without  which  the  marriage  is  a  nullity. 
(Van  der  Linden,  by  Henrj',  p.  83.)  As  to  this,  no  exception  is 
made  in  favor  of  any  persons  whatever,  being  foreigners,  or  in 
itinere,  or  otherwise.     (See  Ruding  v.  Smith,  ii  Hag.  C.  R.  371,  note.) 

So,  in  Spain,  marriage  must  be  solemnized  by  prescribed  rule, 
that  is,  through  the  intervention  of  the  parish  priest,  or  other  clergy- 
man with  license  of  his  ordinary,  according  to  the  article  of  the 

504 


OPINIONS  OF  ATTORNEYS  GENERAL 

Council  of  Trent  concerning  the  reformation  of  matrimony.  (Tapia, 
Febrero  Novis.,  lib.  i,  cap.  2;  Sala,  Derecho  real  de  Espana,  lib.  i, 
tit.  4.) 

It  is  unnecessary  to  extend  these  examples.  SuflRce  it  to  say,  that 
in  some  countries  religious  or  ecclesiastical  impediments  exist ;  in 
others,  where  that  is  not  the  case,  the  legal  conditions  of  capacity  and 
requisite  forms  are  very  serious  obstacles.  A  critical  examination  of 
the  law  of  different  countries  of  Europe  would  only  serve  to  augu- 
ment  the  weight  of  legal  objections  to  the  celebration  of  marriages  by 
consuls  of  the  United  States. 

It  may  be,  that  a  marriage  between  foreigners  celebrated  by  a 
consul  of  the  United  States  abroad,  though  utterly  null  in  the  coun- 
try where  it  is  celebrated,  might,  if  the  parties  emigrate  to  this  coun- 
try, acquire  validity  in  some  of  the  states  of  the  Union,  as  a  marriage 
proved  by  repute  and  by  cohabitation  following  consent,  according  to 
the  old  rule  of  the  common  law.  Even  then,  the  certificate  of  the 
consul  would  not  constitute  the  mar-  (28)  riage;  it  would  serve  at 
most  only  as  proof  of  consent,  to  be  connected  with  proof  of  cohabita- 
tion. 

But  the  practice  of  celebrating  such  marriages  would  be  objec- 
tionable even  then,  because  it  is  in  fraud  of  the  local  jurisdiction, 
and  contrary  to  the  dictates  of  international  comity,  if  not  to  positive 
law. 

In  what  precedes,  the  inquiry  has  been  treated  as  relating  entirely 
to  marriages  assumed  to  be  legalized  by  consuls  of  the  United  States 
residing  officially  in  any  of  the  countries  of  Christendom. 

For,  in  regard  to  states  not  Christian,  although  we  make  treaties 
with  them  as  occasion  may  require,  and  assert  in  our  intercourse  with 
them  all  such  provisions  of  the  law  of  nations  as  are  of  a  political  na- 
ture,— yet  we  do  not  suffer,  as  to  them,  that  full  reciprocity  of  munici- 
pal obligations  and  rights  which  obtains  among  the  nations  of  Christ- 
endom. 

This  point  is  determined  very  explicitly  in  our  treaty  with 
China,  which,  in  the  most  unequivocal  terms,  places  all  the  rights  of 
Americans  in  China,  whether  as  to  the  person  or  property,  imder  the 
sole  jurisdiction,  civil  and  criminal,  of  the  authorities  of  the  United 
States,  (see  the  treaty,  viii  Stat,  at  Large,  p.  592;)  and  congress 
has  made  provision  to  meet  the  exigencies  of  the  treaty  in  this  respect. 
(Act  of  August  11,  1848,  ix  Stat,  at  Large,  p.  276.) 

Our  treaty  with  Turkey  is  less  explicit  on  this  point;  but  it  ex- 
pressly ascribes  to  citizens  of  the  United  States  exterritoriality  in 
criminal  matters,  (see  the  treaty,  viii  Stat,  at  Large,  p.  408,)  provi- 
sion as  to  which  is  made  by  the  above-cited  act  of  congress;  and  as 

505 


Vol.  VII,  p.  18  (GUSHING) 

the  treaty  stipulates  how  controversies  in  Turkey,  between  citizens 
of  the  United  States  and  subjects  of  the  Porte,  shall  be  adjudicated, 
that  is,  by  the  local  authorities  in  presence  of  a  representative  of  the 
United  States;  and  as  it  stipulates  that  only  a  certain  class  of  litiga- 
tion shall  be  submitted  to  the  Porte ;  and  as  it  gives  to  Americans  in 
Turkey  all  the  rights  of  the  most  favored  nation,  with  express  refer- 
ence to  "the  usages  observed  towards  other  Franks," — it  might  be 
assumed  that  the  doctrine  of  exterritoriality  applies  to  Americans  in 
Turkey,  as  it  certainly  does  to  subjects  there  of  all  the  (29)  Christian 
states  of  Europe.     (Moreuil,  Guide  des  Agents  Consulaires,  tit.  2.) 

Our  treaties  with  the  minor  IMahammedan  governments  of  Tri- 
poli, ]\Iorocco,  Muscat,  and  Bruni,  are  even  less  explicit  than 
that  with  Turkey.  Still,  it  may  be  assumed  in  regard  to  them,  as  a 
principle  of  the  international  law  of  the  world,  so  far  as  there  is  any, 
that  unless  there  be  express  agreement  to  the  contrary,  no  Christian 
nation  admits  a  full  reciprocity  of  municipal  rights  as  between  itself 
and  any  state  not  Christian ;  and  therefore,  that,  in  the  Mohammedan 
governments  above  enumerated,  Americans  possess  the  rights  of  ex- 
territoriality which  belong  to  all  other  "Franks,"  that  is,  the  races 
of  independent  Christian  Europe  and  America.  (See  Ward's  Law 
of  Nations,  vol.  ii,  passim;  Kluber,  Droit  des  Gens,  s.  id.;  Wildman's 
Institutes,  vol.  i,  p.  130.) 

In  our  treaty  with  Siam,  we  have  inconsiderately  engaged  that 
our  citizens  being  there  "shall  respect  and  follow  the  laws  and  cus- 
toms of  the  country  in  all  points."  (See  the  treaty,  viii  Stat,  at 
Large,  p.  455.)  I  do  not  know  how  they  are  to  do  this,  unless  they 
become  Pagans  "in  all  points."  That  provision  of  the  treaty  is,  in 
the  international  relations  of  the  United  States,  the  solitary  excep- 
tion, it  is  believed,  to  the  rule  that  the  municipal  rights  of  citizens  of 
the  United  States  arc  not  subject  to  the  local  law  of  any  state  not 
Christian. 

True,  we  deal  with  such  states  as  governments,  and  apply  to 
them,  so  far  as  we  can,  the  doctrines  of  our  international  law.  (The 
Helena,  iv  Robins.  Adm.  R.  5.)  But,  when  we  speak  of  the  law 
of  nations,  we  mean  the  international  law  of  the  nations  of  Christian 
Europe  and  America.  Our  treaties  Avith  nations  other  than  these 
bring  them  practically  within  the  pale  of  our  public  law,  but  it  is 
only  as  to  political  rights:  municipal  rights  remain  as  they  were. 
rWheaton's  Elements,  p.  44;  Poison's  Law  of  Nations,  p.  17;  Philli- 
more's  International  Law,  p.  86.) 

On  this  point,  as  on  all  others  in  the  course  of  the  present  opinion, 
English  and  American  authorities  are  cited  indiscriminately,  because 
the  law  of  both  countries  maintains  the  same  doctrine  in  the  premises; 

506 


OPINIONS  OF  ATTORNEYS  GENERAL 

and  Great  Britain  is  in  advance  of,  (30)  rather  than  behind,  the 
other  nations  of  Christendom,  in  repelling  the  municipal  jurisdiction 
of  communities  not  Christian. 

The  doctrine  above  enunciated  applies  to  Japan ;  to  the  minor  in- 
dependent states  of  Asia  and  its  islands,  whether  Mohammedan,  Indo- 
Chinese,  Malay,  or  what  others;  to  the  barbaric  political  communities 
of  Africa;  and  still  more  to  the  petty  insular  tribes  of  Oceanica. 

Our  treaty  with  the  Hawaiian  Islands  places  them  on  the  footing 
of  a  Christian  state,  with  the  municipal  rights  belonging  to  the  in- 
ternational law  of  Christendom,     (ix  Stat,  at  Large,  p.  977.) 

Now,  in  regard  to  the  states  not  Christian,  not  only  the  Moham- 
medan states,  but  all  the  rest,  it  seems  to  me  that  the  true  rule  is, 
that  contracts  of  citizens  of  the  United  States  in  general,  and  espec- 
ially the  contract  of  marriage,  are  not  subject  to  the  lex  loci,  but  to  be 
governed  by  the  law  of  the  domicil ;  and  that,  therefore,  in  such  coun- 
tries, a  valid  contract  of  marriage  may  be  solemnized,  and  the  con- 
tract authenticated,  not  only  by  an  ambassador,  but  by  a  consul  of 
the  United  States. 

The  English  authorities  come  to  substantially  the  same  conclu- 
sion, for  similar  reasons.  "Nobody  can  suppose,"  says  Lord  Stowell, 
"that  whilst  the  Mogul  Empire  existed,  an  Englishman  (in  Hindo- 
stan)  was  bound  to  consult  the  Koran  for  the  celebration  of  his  mar- 
riage," In  most  of  the  Asiatic  and  African  countries,  indeed,  law  is 
personal,  not  local,  as  it  was  in  many  parts  of  Modern  Europe  in  the 
formative  period  of  its  present  organization.  Hence,  in  British  India, 
Hindus,  Parsis,  Jews,  Mohammedans,  Christians,  all  marry  according 
to  the  law  of  their  religion.  Nay,  the  ecclesiastical  law  of  England 
goes  further  than  this,  for  it  recognizes  the  marriage  of  Englishmen, 
celebrated  according  to  the  English  law,  that  is,  by  a  clergyman,  in 
British  factories  abroad,  though  situated  in  Christian  countries,  but 
countries  of  the  Roman  Catholic  or  Greek  religion,  (Ruding  v. 
Smith,  ii  Hagg.  C,  R.,  p.  371;  Kent  v.  Burgess,  xi  Simons,  361.)  In- 
deed, in  the  preceding  cases,  as  in  others,  the  English  authorities,  as 
we  have  already  seen,  lay  down  the  broad  rule  that  where,  owing  to 
religious  or  legal  difficulties,  the  marriage  is  impossible  by  the  lex  loci 
still  (31)  a  lawful  marriage  may  be  contracted,  and  of  course  authen- 
ticated, by  the  best  means  of  which  the  circumstances  admit,  as  in 
many  cases  of  marriage  contracted  in  the  East  Indies  and  in  other 
foreign  possessions  of  Great  Britain.  (See  Catterall  v.  Catterall,  i 
Roberts,  580.) 

This  doctrine  is  conformable  to  the  canon  law,  which  gives  effect 
to  what  are  called  matrimonia  clandestina,  that  is,  marriages  cele- 
brated without  observance  of  the  religious  and  other  formalities  de- 

507 


Vol.  VII,  p.  18  (GUSHING) 

creed  by  the  Coimcil  of  Trent,  (Cavalario,  Derecho  Canonico,  torn,  ii, 
p.  172;  Escriehe,  s.  v.  Matr.,)  when  contracted  in  countries  where, 
if  those  decrees  were  enforced,  there  could  be  no  marriage,  ("Walter, 
Derecho.  Ecclesiastico,  s.  292.  294.)  Nay,  in  such  countries,  in  the 
absence  of  a  priest,  there  may  be  valid  marriages  by  consent  alone, 
conformably  to  the  canon  law  as  it  stood  before  the  Council  of  Trent, 
eitlier  by  verba  de  praesenti  or  by  verba  de  futuro  cum  copula,  as  hap- 
pened ex  necessitate  rei,  under  the  Spanish  law,  in  remote  parts  of 
America.  Of  course,  in  circumstances  like  this,  a  marriage  might 
be  legalized  by  a  mere  military^  commandant.  (Patton  v.  Phil.  & 
New  Orleans,  i  La.  An,  R.,  p.  98;  see  also  Hallett  v.  Collins,  x  How, 
p.  174.) 

Surely  this  doctrine  applies  to  the  present  question ;  for,  seeing 
that,  by  the  common  law  of  marriage,  as  now  received  in  all,  or  nearly 
all,  the  states  of  the  Union,  marriage  is  a  civil  contract,  to  the  validity 
of  which  clerical  intervention  is  unnecessary,  (Bishop  on  Marriage, 
s.  163,)  it  would  seem  to  follow,  at  least  as  to  all  those  countries,  bar- 
baric or  other,  in  which  there  is  in  fact  no  lex  loci,  or  those  Moham- 
medan or  Pagan  countries,  in  which,  though  a  local  law  exist,  yet 
Americans  are  not  subject  to  it,  that  there  the  personal  statute  ac- 
companies them,  and  the  contract  of  marriage,  like  any  other  con- 
tract, may  be  certified  and  authenticated  by  a  consul  of  the  United 
States. 

But  this  doctrine  does  not  apply  to  the  countries  of  Europe,  or 
their  colonies  in  America  or  other  parts  of  the  world:  in  all  which 
there  is  a  recognized  law  of  the  place,  and  the  rule  of  locus  regit  actum 
is  in  full  force.  There,  in  my  opinion,  a  con-  (32)  sul  of  the  United 
States  has  no  power  to  celebrate  marriage  between  either  foreigners  or 
Americans. 

It  appears  by  the  correspondence  accompanying  your  communi- 
cation that,  in  some  parts  of  Europe,in  consequent  of  poverty  or  other 
impediments  thro^\T3  in  the  way  of  marriage,  there  is  great  preval- 
ence of  concubinage;  that  the  desire  of  lawful  cohabitation  enters  into 
the  inducements  of  emigration ;  and  that  it  becomes  an  object,  espec- 
ially with  emigrant  females,  to  obtain,  before  leaving  their  country, 
if  not  a  marriage,  yet  an  assured  matrimonial  engagement ;  and  that 
Buch  parties  are  in  the  practice  of  entering  into  mutual  promises  of 
marriage,  and  procuring  the  contract  to  be  certified  by  the  consul 
of  the  United  States.  Such  a  contract  would  probably  give  rights  of 
action  to  the  parties  in  this  country ;  it  must  have  a  tendency  to 
promote  the  good  morals,  and  be  particularly  advantageous  to  the 
party  mo.st  needing  protection,  that  is,  the  female  emigrant;  and 
nothing  in  our  o^ti  laws,  or  in  our  public  policy,  occurs  to  me  as  for- 

508 


OPINIONS  OF  ATTORNEYS  GENERAL 

bidding  it,  unless  it  be  contrary  to  the  law  of  the  land  in  which  the 
contract  is  made. 

I  have  the  honor  to  be,  very  respectfully, 

C.  GUSHING. 
Hon.  Wm.  L.  Marcy,  Secretary  of  State. 


Vol.  VII,  p.  186  (Gushing) 

AMBASSADORS  AND  OTHER  PUBLIC  MINISTERS  OF  THE  UNITED 

STATES 

(Syllabus)  The  expression  "ambassadors  and  other  public  ministers,"  which 
occurs  three  times  in  the  constitution,  must  be  understood  as  comprehending  all 
officers  having  diplomatic  functions,  whatever  their  title  or  designation. 

Hence,  the  president  has  power  by  the  constitution  to  appoint  diplomatic 
agents  of  the  United  States  of  any  rank,  at  any  place,  and  at  any  time,  in  his 
discretion,  subject  always  to  the  constitutional  conditions  of  relation  to  the 
senate. 

The  power  to  make  such  appointments  is  not  derived  from,  and  cannot  be 
limited  by,  any  act  of  congress,  except  in  so  far  as  appropriations  of  money  are 
necessary  to  provide  means  for  defraying  the  expense  of  this  as  of  any  other 
business  of  the  government. 

During  the  entire  administrations  of  Washington,  John  Adams,  Jefferson,  and 
the  first  term  of  that  of  Madison,  no  mention  occurs  in  any  appropriation  act,  of 
ministers  of  a  specified  rank  at  this  or  that  place;  but,  sometimes  by  special  act, 
and  sometimes  in  the  general  appropriation  acts,  the  provision  for  the  diplomatic 
corps  consisted  of  so  much  money  "for  the  expenses  of  foreign  intercourse,"  to 
be  expended  in  the  discretion  of  the  president ;  and  although,  since  that  time,  the 
practice  has  been  to  provide  for  certain  ministers  at  certain  places,  yet  that  mode 
of  legislation  does  not  in  terms,  amd  could  not  in  law,  either  extend  or  restrict 
the  constitutional  authority  of  the  president,  (187)  t»y  and  with  the  advice  and 
consent  of  the  senate,  to  negotiate  treaties  and  make  diplomatic  appointments,  ac- 
cording to  his  and  their  judgment  of  the  public  interests  of  the  Union. 

Commencing  with  the  administration  of  our  foreign  affairs  by  Mr.  Jefferson 
under  President  Washington,  and  so  continuing  under  every  successive  president 
down  to  the  present  time,  it  has  been  the  uniform  practice  of  the  government  to 
regard  the  titular  designations  and  the  appointments  of  all  diplomatic  ministers 
as  the  exclusive  and  proper  constitutional  function  of  the  conjoint  executive  de- 
partment, that  is,  the  president  and  the  senate. 

"Ambassadors,"  by  the  public  law  of  Europe,  enjoy  the  highest  privileges, 
because  of  the  pretended  or  putative  direct  relation  of  the  ministers  of  this  name 
to  their  sovereign ;  but  the  imperial  or  regal  sovereignty  of  a  European  monarchy 
neither  has  nor  can  have  any  public  right  in  this  respect,  which  does  not  equally 
belong  to  the  popular  sovereignty  of  a  republic  like  the  United  States. 

The  president  has  constitutional  power  to  appoint,  by  temporary  commission, 
a  diplomatic  officer  to  meet  any  public  exigency  arising  in  the  recess  of  the 
senate. 

The  president  has  constitutional  power,  in  the  recess  of  the  senate,  to  change 
the  designation  of  any  mission,  either  by  substituting  a  higher  for  a  lower  rank, 
or  a  lower  for  a  higher,  independently  of  any  authorizing  act  of  congress. 

509 


Vol.  Vlh  p.  186  (GUSHING) 

Congress  cannot  by  law  require  that  the  president  shall  make  removals  or  re- 
appointments or  new  appointments  of  public  ministers  on  a  given  day;  not  that 
he  shall  at  all  times  appoint  and  maintain  a  minister  of  a  prescribed  rank  at  a 
particular  court;  because,  while  the  House  of  Representatives  has  control  of  the 
tax  power  and  of  appropriations,  yet  the  constitution  has  intrusted  the  whole 
negotiating  power  to  the  president  in  behalf  of  the  aggregate  Union,  and  to  the 
senate  composed  of  the  legislative  and  executive  ministers  of  the  separate  sov- 
ereignty and  rights  of  each  of  the  states  of  the  Union. 

When  the  act  of  the  last  congress  to  remodel  the  diplomatic  system  of  the 
United  States,  declares  that  from  and  after  the  end  of  the  present  fiscal  year  the 
president  shall  appoint  envoys  extraordinarios,  with  secretaries  of  legation,  at 
every  place  except  one  in  Europe,  Asia,  or  America  where  the  United  States  now 
have  any  diplomatic  agent,  whether  envoy,  minister  resident,  charge  d  'Affaires, 
or  commissioner,  and  proceeds  to  define  the  salaries  of  such  envoys  and  secre- 
taries,— it  could  not  constitutionally  mean,  and  therefore  is  not  to  be  construed 
as  meaning,  to  require  the  president  to  make  any  such  appointments,  but  only  to 
determine  what  shall  be  the  salaries  of  such  officers,  in  case  they  have  been,  or 
shall  be,  lawfully  appointed  at  any  time  by  the  president. 

The  phrase  ' '  from  and  after ' '  a  certain  day,  employed  in  the  act,  does  not 
determine  what  its  legal  effect  shall  be,  but  only  the  time,  when  that  legal  effect, 
whatever  it  is,  shall  commence. 

The  auxiliary  verb  ' '  shall ' '  in  the  act,  wherever  it  occurs  in  reference  to 
appointments,  is  only  a  word  of  time  as  to  incidents,  and  never  of  command  as  to 
the  main  fact. 

(188)  The  act  has  no  general  phrase  of  repeal,  and  no  effect  of  repeal  by 
implication,  and  repeals  nothing  except  such  specific  things  as  it  repeals  in  ex- 
press terms. 

The  president  may,  notwithstanding  this  act,  continue  to  appoint  or  to  re- 
tain public  ministers  of  the  rank  of  commissioner,  minister  resident,  or  charge 
d  'affaires,  in  his  discretion,  with  concurrence  of  the  senate. 

The  existing  laws,  which  prescribe  a  rate  of  salary  for  ministers  resident  and 
charge  d'affaires,  are  not  affected  by  this  act,  and  still  continue  in  full  force. 

Envoys  extraordinary  and  secretaries  of  legaton  in  office  will,  on  the  day 
fixed,  be  entitled  to  the  benefits,  and  subject  to  the  deductions,  of  the  new  pro- 
visions of  this  act  regarding  compensation,  including  salary  whether  increased  or 
not,  and  prohibition  of  outfit  or  infit,  without  reappointment  by  the  president. 

The  president  may  appoint  envoys  at  the  places  where  the  present  minister 
is  a  minister  resident,  and  in  that  case  the  new  envoy  will  be  entitled  to  the 
salary  prescribed  by  the  act. 

The  president  may  leave  unchanged  all  the  ministers  resident;  in  which  case 
they  will  each  be  entitled  severally  to  the  salary  prescribed  by  the  pre-exiBting 
acta  of  congress. 

The  president  may  or  not,  in  his  discretion,  appoint  secretaries  of  legation 
at  the  places  mentioned  in  the  act. 

If  the  legal  effect  of  the  act  could  be  considered  as  the  prospective  creation 
of  new  oflBces,  to  begin  to  exist  at  a  future  day  certain,  then  the  president  might 
appoint  on  that  day  as  for  a  vacancy  then  existing  in  the  recess  of  the  senate; 
but  as  the  office  of  public  minister  is  in  fact  a  constitutional,  not  a  statute  one, 
be  might  appoint  without  the  act,  and  in  virtue  of  the  constitution. 

The  pUrase  in  the  act, — "shall,  by  and  with  the  advice  and  consent  of  the 
fenate,  appgipt, ''  wnnot  take  away  any  constitutional  power  of  the  president  to 

510 


OPINIONS  OF  ATTORNEYS  GENERAL 

appoint  in  the  recess  of  the  senate,  and  has  no  effect  save  to  negative  the  idea 
of  its  being  intended  to  create  any  such  "inferior  officers,"  the  appointment  of 
which  may  be  vested  by  congress  in  the  president  alone  or  in  the  heads  of  de- 
partments. 

The  whole  effect  of  the  act,  as  to  appointments,  is,  by  the  provision  for  new 
salaries  on  a  given  day,  to  invite  the  president  to  make  new  appointments  on 
that  day  if  he  see  fit;  but  whether  he  shall  make  them  or  not  is  a  question  ot 
his  mere  executive  discretion  under  the  constitution. 

The  question  of  executive  discretion  in  the  case,  being  wholly  independent 
of  this  act,  is  the  permanent  one,  of  wise  and  lawful  discretion  having  its  measure 
in  the  exigencies  of  the  public  service  and  the  letter  and  spirit  of  the  constitu- 
tion. 

The  president  may  lawfully  appoint  new  envoys  and  secretaries  at  all  the 
places  mentioned  in  the  act;  the  act  affords  the  pecuniary  means  of  doing  this; 
the  president  may  well  and  should  do  this,  in  any  particular  case,  where  the  pub- 
lic service  seems  to  him  to  require  it ;  but  for  him  to  change  the  personnel  or  raise 
the  rank  of  the  entire  diplomatic  service  of  the  United  States  in  the  recess  of  the 
senate,  and  without  the  concurrence  of  that  co-ordinate  authority,  would  not  be 
a  just  exercise  of  the  presidential  di8cre-n89)tioD)  whether  in  its  relation  to  the 
ministers  themselves,  to  the  public  service,  or  to  the  spirit  of  the  constitution. 

The  salary  prescribed  by  existing  law  for  all  the  present  ministers  resident, 
except  one,  is  $4,500 ;  for  that  one,  the  minister  to  the  Ottoman  Porte,  it  ia 
$6,000;  which  latter  sum  is  the  general  statute  compensation  of  ministers  resi- 
dent in  all  cases  save  where  the  lower  salary  is  expressly  prescribed  by  particular 
act  of  congress. 

Although  the  appropriation  act  of  the  last  session  of  congress,  in  appro- 
priating for  the  diplomatic  service  of  the  next  fiscal  year,  provides  in  terms  for 
envoys  extraordinary  only,  still  that  appropriation  is,  by  collation  with  express 
provision  of  previous  laws,  subject  te  draft  for  the  compensation  of  diplomatic 
ofiicers  of  whatever  rank  lawfully  in  ofiice  by  appointment  of  the  president. 

The  commissioner  of  the  United  States  in  China,  while  he  is  a  diplomatic 
officer  by  the  law  of  nations,  is  also  a  judicial  officer  by  treaty  and  by  statute. 

The  provision  of  the  new  act,  which  contemplates  the  appointment  only  of 
an  envoy  extraordinary  to  China,  is  imperfect;  for,  although  the  first  minister  of 
the  United  States,  in  China,  held  those  two  distinct  commissions,  yet  a  repeti- 
tion of  that  fact  at  this  moment  would  not  be  compatible  with  the  diplomatic 
relations  at  present  existing  between  the  United  States  and  China. 

I  have  the  honor  to  be,  very  respectfully, 

C.  GUSHING. 
Hon.  Wm.  L.  Marcy,  Secretary  of  State. 


Vol.  VII,  p.  242  (Gushing) 
APPOINTMENT  OF  CONSULS 

It  belongs  exclusively  to  the  president  of  the  United  States,  by  and  with 
the  advice  and  consent  of  the  senate,  to  appoint  consular  officers  to  such  placea 
as  he  and  they  deem  to  be  meet. 

511 


Vol.  ^11,  p.  242  (GUSHING) 

Consuls  are  officers  created  by  the  constitution  and  the  laws  of  nations,  not 
bv  acts  of  congress. 

Conpross  may  by  law  vest  the  appointment  of  inferior  consular  officers  in 
the  president  alone  or  in  the  secretary  of  state. 

When  the  act  of  the  last  congress,  remodelling  the  consular  system,  says  that 
from  and  after  the  30th  of  June  next  the  president  shall  appoint  consuls  to  cer- 
tain places,  it  means  that  he  may  appoint  them,  if  he  see  fit,  with  such  reference 
to  the  advice  and  consent  of  the  senate  as  the  constitution  prescribes. 

The  act  does  not  require  him  to  appoint  new  consuls,  or  to  reappoint  the 
present  incumbents,  at  the  places  mentioned,  nor  to  remove  consuls  now  existing 
at  places  not  named  in  the  act,  nor  to  omit  to  appoint  new  ones  at  other  places 
not  named  in  it. 

The  rates  and  mode  of  compensation,  by  the  act,  take  effect  in  regard  to  all 
consuls  at  the  places  named,  and  lawfully  in  office  at  the  day  fixed,  whensoever 
they  have  been  or  shall  be  appointed. 

All  of  the  provisions  of  the  act  regarding  the  duties  of  consular  officers  take 
effect  on  the  1st  of  July. 

Nothing  in  the  act  forbids  the  continued  appointment  of  vice-consuls  or  con- 
sular agents,  with  approval  of  the  secretary  of  state. 

The  several  consuls  for  whom  the  act  provides  annual  salaries,  must  collect 
and  pay  over  all  fees  for  consular  service  to  the  government. 

The  penalty  of  removal  from  office,  which  the  act  affixes  to  the  non- 
performance of  some  duties  by  consuls,  is  inoperative,  because  removal  from  office 
cannot  be  enacted  as  a  statute  penalty,  it  being  a  matter  for  the  constitutional 
discretion  of  the  president. 

Consuls  not  duly  accounting  for  fees  collected  for  consular  service  are  sub- 
ject to  indictment  for  the  statute  crime  of  embezzlement,  in  the  terms  of  the  act 
of  1846,  which  regulates  the  collection,  safe-keeping,  and  disbursement  of  public 
moneys. 

Consuls,  commercial  agents,  vice-consuls,  and  consular  agents,  for  whom 
salaries  are  not  provided  by  the  act,  are  entitled  to  continue  to  receive  fees  for 
consular  service. 

The  act  does  not  repeal  any  fees  except  those  which  it  expressly  mentions,  and 
leaves  all  others  as  they  now  stand  by  act  of  congress  or  regulations  of  depart- 
ment. 

The  provisions  of  the  act  against  the  appointment  of  any  citizen  of  the 
United  States,  not  actually  residing  therein  or  aboard  in  the  public  service  at  the 
time,  is  directory  only,  not  mandatory  on  the  president. 

In  taking  charge  of  the  estates  of  citizens  of  the  United  States  dying  abroad, 
the  power  of  consuls  is  limited  to  collecting  the  assets  abroad,  discharging  (243) 
them  of  local  liabilities,  reducing  them  to  money,  and  transmitting  to  the  treas- 
ury, subject  to  the  orders,  both  before  and  afterwards,  of  the  lawful  executor  or 
administrator. 

The  rule  for  the  distribution  of  the  personal  effects  of  any  deceased  citizen 
of  the  United  States,  either  at  home  or  abroad,  is  the  law  of  the  particular  state 
of  his  domicile,  and  cannot  be  changed  by  the  act  of  congress. 

Consuls-general  are  the  proper  persons  to  hold  consular  posts  in  the  capi- 
tals of  the  great  transmarine  dependencies  of  European  powers,  and  to  consti- 
tute the  medium  of  communication  with  the  local  governor  or  captain  general, 
and  are  appointable  at  the  discretion  of  the  president  with  consent  of  the  senate. 

512 


OPINIONS  OF  ATTORNEYS  GENERAL 

Attorney  General's  Office, 

June  2,  1855. 

Sir:  I  proceed  now  to  complete  my  reply  to  your  communica- 
tion of  the  ITth  ultimo,  by  disposing  of  so  much  of  the  same,  and  of 
the  written  memoranda  and  verbal  suggestions  accompanying  it,  as 
relates  to  the  consular  provisions  of  the  act  of  the  last  congress,  en- 
titled "An  act  to  remodel  the  diplomatic  and  consular  systems  of  the 
United  States." 

The  act  provides,  in  its  fourth  section,  as  follows : 

"Sec.  4,  And  be  it  further  enacted,  That  from  and  after  the 
thirtieth  day  of  June  next  the  President  of  the  United  States  shall, 
by  and  with  the  advice  and  consent  of  the  senate,  appoint  consuls 
for  the  United  States,  to  reside  at  the  following  places,  who  shall  re- 
ceive during  their  continuance  in  office  an  annual  compensation  for 
their  services  not  exceeding  the  amount  specified  herein  for  each, 
and  who  shall  not  be  permitted  to  transact,  under  the  penalty  of  being 
recalled  and  fined  in  a  sum  not  less  than  two  thousand  dollars,  busi- 
ness either  in  their  own.  name  or  through  the  agency  of  others." 

The  section  then  goes  on  to  enumerate  sundry  places,  in  various 
parts  of  the  world,  with  salaries  annexed  to  each,  thus, — "London, 
seven  thousand  five  hundred  dollars." 

The  act  provides,  in  its  fifth  section,  as  follows: 

"Sec.  5.  And  be  it  further  enacted.  That  from  and  after  the 
thirtieth  day  of  June  next  the  President  of  the  United  States  shall, 
by  and  with  the  advice  and  consent  of  the  Senate,  appoint  consuls  and 
commercial  agents  for  the  United  States,  to  reside  at  the  following 
places,  who  shall  receive,  during  their  continu-  (244)  ance  in  office, 
an  annual  compensation  for  their  services  not  exceeding  the  amount 
specified  herein  for  each,  and  who  shall  be  at  liberty  to  transact  busi- 
ness."  And  the  section  then  goes  on  to  enumerate  sundry  places, 
each  with  salary  annexed,  some  of  them  thus, — "Southampton,  one 
thousand  dollars ; ' '  and  others  thus, — '  *  Curasao,  five  hundred  dollars, 
(commercial  agent.)  " 

The  6th  and  7th  sections  declare  that  no  consul  or  commercial 
agent,  who  shall,  after  the  thirtieth  day  of  June  next,  be  appointed 
to  any  of  the  places  herein  named,  shall  be  entitled  to  compensation 
until  he  shall  have  reached  his  post  and  entered  upon  his  official 
duties;  and  that  the  compensation  of  every  consul  or  commercial 
agent,  so  appointed  to  any  of  the  places  herein  named,  shall  cease  on 
the  day  that  his  successor  shall  enter  upon  the  duties  of  his  office. 

The  9th,  10th,  11th,  13th.  14th,  15th,  16th,  17th,  18th,  19th,  20th, 
21st,  22d,  and  23d  sections  provide  various  regulations  concerning 

513 


Vol.  VII,  p.  242  (GUSHING) 

"consuls  and  commercial  agents;"  the  9th  also,  and  that  alone,  men- 
tioning "vice-consuls"  and  "consular  agents." 

The  12th  section  provides  as  follows : 

"Sec.  12.  And  be  it  further  enacted,  That  it  shall  be  the  duty 
of  consuls  and  connnercial  agents  to  charge  the  following  fees  for 
performing  the  services  specified,  for  which,  under  the  penalty  of 
being  removed  from  office,  they  shall  accoimt  to  the  government  at 
the  expiration  of  every  three  months,  and  hold  the  proceeds  subject  to 
its  drafts: 

"For  receiving  and  delivering  ships'  papers,  half  cent  on  every 
ton,  registered  measurement,  of  the  vessel  for  which  the  service  is 
performed. 

"For  every  seaman  who  may  be  discharged  or  shipped  at  the 
consulate  or  commercial  agency,  or  in  the  port  in  which  they  are  lo- 
cated, one  dollar ;  which  shall  be  paid  by  the  master  of  the  vessel. 

"For  every  other  certificate,  except  passports, — the  signing  and 
verification  of  which  shall  be  free — two  dollars." 

The  28th  section  declares  that  the  President  of  the  United  States 
is  "authorized  to  bestow  the  title  of  consul  general"  (245)  upon  any 
consul  in  Asia  or  Africa,  "when,  in  his  opinion,  such  title  will  pro- 
mote the  public  interest." 

The  26th  section  repeals  all  acts  or  parts  of  acts  authoriz- 
ing the  payment  to  consuls  of  "salaries  for  clerk-hire  and  office-rent." 

The  27th  section  provides  as  follows : 

"Sec.  27.  And  be  it  further  enacted.  The  provisions  of  this  act 
to  take  effect  from  and  after  the  thirtieth  of  June  next,  any  law 
or  laws  of  the  United  States  to  the  contrary  notwithstanding." 

Upon  the  construction  of  this  act,  the  first  question  is:  Does 
it  supersede  the  consuls  who  may  be  in  office  when  it  goes  into  effect? 

My  judgment  on  this  point  is  governed  by  the  considerations 
stated  at  length  in  my  letter  of  the  25th  ultimo  regarding  the  public 
ministers  of  the  United  States,  which  considerations  apply  in  prin- 
ciple to  the  subject  of  consuls,  and  compel  me  to  think  that  the  words 
of  enactment, — the  president  shall  from  and  after  such  a  day  ap- 
point,— signify  only,  may  appoint, — or  rather,  that  such  and 
such  compensation  shall  be  allowed,  after  such  day,  to  such 
officers  of  the  denomination  and  at  the  places  specified,  who 
shall  from  and  after  that  day  be  lawfully  in  office  under 
the  constitution  or  acts  of  congress.  Of  course,  the  act  does  not 
operate,  either  propria  vigore,  or  by  compulsion  of  the  president's 
will,  so  as  to  supersede  any  consul.  I  refer  to  that  communication 
for  a  full  statement  of  the  considerations  of  constitutional  right,  or 

514 


OPINIONS  OF  ATTORNEYS  GENERAL 

legislative  and  administrative  action,  and  of  statutory  construction, 
which  bring  me  to  this  conclusion. 

It  occurs  to  me,  however,  that  one  of  those  arguments  may  have 
additional  force  of  impression,  in  being  presented  from  another  point 
of   view. 

The  appropriation  act  provides  that  the  increased  salaries,  which 
the  new  act  allows  from  and  after  a  certain  day,  may  be  paid  to 
such  existing  envoys  extraordinary  as  may  not  be  reappointed.  This 
clause  of  the  appropriation  act  does  not  repeal  anything;  it  only  as- 
sumes that  a  certain  thing  may  lawfully  happen,  and  then  declares 
what  is  to  be  intended  as  the  mean-  (246)  ing  of  the  general  act  as 
applicable  to  that  thing  in  case  it  shall  thus  happen.  That  supposed 
lawful  thing  is,  the  abstention  of  the  president  from  reappointing 
certain  envoys  extraordinary.  Now,  this  abstention  could  not  be 
lawful  if  the  language  of  the  act,  in  regard  to  the  appointment  of  en- 
voys from  and  after  a  prescribed  day,  implied  an  obligation  impera- 
tive on  the  conscience  of  the  president.  But  the  clause  of  the  ap- 
propriation act  admits  the  legality  of  the  supposed  abstention:  of 
course  the  provision  of  the  new  law  in  relation  to  the  appointment  of 
envoys,  from  and  after  a  certain  day,  though  absolute  in  terms,  is 
not  to  be  construed  as  imperative,  and  was  not  so  intended  by  con- 
gress, either  in  the  sense  of  inclusion  of  appointment  or  of  exclusion, 
or  as  regards  either  time  or  nominal  designation. 

Now,  the  same  precise  words,  and  in  the  same  collocation,  are  em- 
ployed in  regard  to  consuls  and  commercial  agents,  as  well  as  envoys 
and  secretaries  of  legation;  and,  according  to  the  settled  rules  of 
statutory  construction,  what  they  mean  in  one  of  the  cases  they  mean 
in  all.  But  we  have  ascertained  that  the  words  are  not  imperative 
in  their  relation  to  envoys.  Of  course  they  are  not  imperative  in 
their  relation  to  consuls  and  commercial  agents,  either  in  the  sense  of 
inclusion  of  appointment  or  of  exclusion,  or  as  regards  either  time  or 
nominal  designation. 

Neither  the  present  nor  any  other  law  of  the  United  States  pro- 
fesses to  define  the  difference  of  meaning  between  the  terms  consul, 
vice-consul,  commercial  agent,  and  consular  agent.  Some  writers 
on  public  law  employ  the  term  '  *  consular  agent ' '  as  the  generic  desig- 
nation of  the  class  of  consular  officers,  just  as  "diplomatic  agent"  is 
often  used  in  a  similar  generic  sense  to  denote  all  diplomatic  officers, 
the  ambassadors  and  public  ministers  of  the  constitution.  But  the 
term  "consular  agent"  certainly  has  a  much  narrower  acceptation 
in  the  usage  of  this  government.  The  language  of  the  constitution, 
as  well  when  it  refers  to  the  appointments  of  our  own  "consuls,"  as 
when  it  gives  to  the  courts  of  the  United  States  jurisdiction  over 

515 


Vol.  VII,  p.  242  (GUSHING) 

foreign  "consuls,"  must  be  regarded  as  making  this  latter  term  the 
true  nominal  designation  of  the  class  in  our  law. 

(247)  In  the  early  usage  of  the  government,  we  had  only  con- 
suls and  vice-consuls,  both  appointed  by  nomination  to  the  senate; 
but  the  present  act,  in  the  section  where  it  speaks  of  "vice-consuls" 
and  "consular  agents,"  seems  to  regard  them  as  the  subordinates  of 
consuls,  and  not  requiring  nomination  to  the  senate;  and  this  view 
of  their  relation  is  in  accordance  with  existing  usages.  (Moreuil, 
Agents  Consulaires,  p.  65.) 

The  act  assumes  another  description  of  consular  functionary,  that 
of  "commercial  agent,"  as  requiring  to  be  commissioned  by  nomina- 
tion to  the  senate,  and  therefore  having  the  same  relation  to  the  laws 
of  the  United  States  as  "consul;"  and,  in  assigning  "commercial 
agents"  to  the  colonial  ports  of  the  Netherlands,  it  recognizes  the  ex- 
isting usage,  of  applying  this  designation  to  consular  officers  ap- 
pointed to  countries  where  no  formal  recognition  of  them  by  exequa- 
tur can  be  demanded  or  obtained  by  the  government. 

Inspection  of  the  language  of  public  treaties  will  aid  us  to  under- 
stand the  mutual  relation  of  the  several  grades  of  "consuls." 

Our  first  consular  convention  with  France  stipulates  that  either 
government  may  appoint  consuls  and  vice-consuls,  who  may  establish 
"agents"  in  the  different  ports  or  places  of  their  departments,  such 
agents  to  hold  by  "commission  from  one  of  the  said  consuls."  (viii 
Stat,  at  Large,  p.  108.) 

Our  previous  treaty  of  commerce  with  France  provides  that  each 
government  may  have,  in  the  ports  of  the  other,  "consuls,  vice- 
consuls,  agents,  and  commissaries."     (viii  Stat,  at  Large,  p.  28.) 

The  same  phrase  occurs  in  our  first  treaty  of  amity  and  commerce 
with  Sweden,     (viii  Stat,  at  Large,  p.  74.) 

In  a  subsequent  treaty  with  the  same  power,  (viii  Stat,  at  Large, 
p.  236,)  the  phrase  employed  is  consuls,  vice-consuls,  and  commercial 
agents,  (agents  de  commerce.)  It  also  speaks  of  "consuls  and  their 
deputies,"  (suppleans.) 

In  a  treaty  with  Russia,  consuls,  vice-consuls,  commercial  agents, 
(agents  commerciaux),  and  commissaries,  are  classed  together  as  con- 
sular officers,     (viii  Stat,  at  Large,  p.  448.) 

But  the  late  consular  convention  with  France  is  the  most  (248) 
explicit  of  all  on  this  point.  It  makes  provision  for  consuls  general, 
consuls,  vice-consuls,  and  consular  agents;  the  vice-consuls  and  con- 
sular agents  to  be  appointed  by  the  consuls  general  and  consuls,  and 
approved  by  their  government.  (Session  Acts  1853-4,  Treaties,  p. 
117.)     It  also  provides  for  "eleves  consuls." 

This  convention  is  framed  with  reference  to  the  laws  of  France, 

516 


OPINIONS  OF  ATTORNEYS  GENERAL 

by  which  vice-consuls  and  consular  agents  are  the  "delegates"  of  the 
consuls,  (Ordon.  26  Octobre,  1833,  De  Clereq,  Formulaire,  p.  509,) 
and  which  establish  the  office  of  eleve  consul,  (Ordon.  20  Aout,  1833, 
ibid.,  p.  467.) 

We  may  conveniently  regard  the  word  of  the  constitution,  "con- 
suls," as  the  generic  designation  of  a  class  of  public  officers  existing 
by  public  law,  and  recognized  by  numerous  treaties,  who  are  ap- 
pointed by  their  government  to  reside  in  foreign  countries,  and  es- 
pecially in  seaports,  and  other  convenient  points,  to  discharge  ad- 
ministrative, and  sometimes  judicial,  functions  in  regard  to  their 
fellow-citizens,  merchants,  mariners,  travellers,  and  others,  who  dwell 
or  happen  to  be  in  such  places ;  to  aid,  by  the  authentication  of  docu- 
ments abroad,  in  the  collection  of  the  public  revenue;  and,  generally, 
to  perform  such  other  duties  as  may  be  assigned  to  them  by  the  laws 
and  orders  of  their  government. 

Congress  cannot,  by  legislative  act,  appoint  or  remove  consuls 
any  more  than  ministers;  but  it  may  increase  at  will  the  descriptions 
of  consular  officers;  it  may  enlarge  or  diminish  their  functions;  it 
may  regulate  their  compensation;  it  may  distinguish  between  some 
officers  appointable  "wdth  advice  of  the  senate,  and  others  appointable 
by  the  president  alone,  or  by  a  head  of  department. 

Accordingly,  by  sujccessive  acts  of  congress,  namely:  the  act  of 
April  14th.  1792,  (i  Stat,  at  Large,  p.  254;)  July  6,  1797,  (i  Stat,  at 
Large,  p.  533;)  March  2,  1799,  (i  Stat,  at  Large,  p.  690;)  February 
20,  1803,  (ii  Stat,  at  Large,  p.  203;)  March  3,  1813,  (ii  Stat,  at  Large, 
p.  810;)  April  20,  1818,  (iii  Stat,  at  Large,  p.  437;)  March  1,  1823, 
(iii  Stat,  at  Large,  p.  737 ;)  March  3,  1836,  (iv  Stat,  at  Large,  p.  773;) 
July  20,  1840,  (v  Stat,  at  Large,  p.  394;)  March  3,  1843,  (v  Stat,  at 
Large,  p.  (249)  750;)  August  11,  1844,  (ix  Stat,  at  Large,  p.  276;) 
July  29,  1850,  (ix  Stat,  at  Large,  p.  442;)  and  by  various  other  inci- 
dental provisions  of  law,  duties  are  imposed,  and  rights  conferred  on 
this  class  of  public  officers,  under  the  different  statute  names  of  con- 
suls general,  consuls,  vice-consuls,  commercial  agents,  vice  commercial 
agents,  and  consular  agents. 

But  all  these  acts  do  by  no  means  exhaust  the  subject.  On  the 
contrary,  the  important  act  of  1792  contains  a  declaratory  provision, 
which  is  to  be  understood  as  implied  in  all  other  acts  of  congress,  as 
follows : 

"The  specification  of  certain  powers  and  duties  herein  to  be  ex- 
ercised or  performed  by  the  consuls  and  vice-consuls  (or  other  con- 
sular officers)  of  the  United  States,  shall  not  be  construed  to  the  ex- 
clusion of  others  resulting  from  the  nature  of  their  appointments, 
or  any  treaty  or  convention  under  which  they  may  act."     (Sec.  9.) 

517 


Vol.  VII,  p.  242  (GUSHING) 

So  that,  outside  of  acts  of  congress,  the  functions  of  consuls  are 
indicated,  and  their  duties  and  rights  defined,  first,  by  many  general 
treaties,  conventions,  imd  consular  conventions,  entered  into  between 
the  United  States  and  other  sovereign  powers. 

Then,  like  other  executive  officers  of  the  United  States,  consuls 
are  subject  to  regulations  issued  by  the  proper  head  of  department. 
(See  Henshaw's  Manual,  p.  122;  Gratiot  v.  United  States,  iv 
Howard's  R..  p.  80;  United  States  v.  McDaniel,  vii  Peters,  p.  1; 
Aldridge  v.  Williams,  iii  Howard,  p.  9.) 

In  addition  to  which,  they  possess,  by  the  law  of  nations,  many 
fimctions,  rights,  and  privileges,  other  than  such  as  are  defined  by 
convention,  by  legislative  act,  or  by  regulation. 

But  their  appointment  remains  unchangeably  one  of  the  organic 
powers  of  the  executive,  derived  from  the  constitution,  not  from  any 
act  of  congress. 

In  illustration  of  which  is  the  fact,  that,  in  the  course  of  the 
first  three  years  of  the  administration  of  President  Washington,  and 
prior  to  the  enactment  of  the  first  act  of  congress  on  the  subject,  con- 
suls were  duly  appointed  and  commissioned,  mostly  during  the  sit- 
ting of  the  senate,  but  some  in  its  recess,  for  the  ports  or  islands  of 
Canton,  Madiera,  Liverpool,  Dublin,  Bordeaux,  Nantes,  Rouen,  His- 
paniola,  ]Martinique,  Bilbao,  London,  (250)  Surinam,  Santa  Cruz, 
Libson,  Morocco,  Copenhagen,  Bristol;  and  vice-consuls  for  Cowes, 
Marseilles,  Hamburg,  Havre-de-Grace,  Fayal. 

It  is  impossible  for  me  to  doubt,  therefore,  that  the  only  effect 
of  the  new  act  in  this  relation  is  to  say,  that  as  to  such  consuls  or 
commercial  agents  as  shall,  on  the  day  prescribed,  be  lawfully  in 
office  at  the  respective  places  mentioned,  the  rate  of  compensation 
per  annum  thereafter  shall  be  such  as  the  act  allows.  The  president 
may  appoint  new  consuls  at  any  of  the  places  mentioned  on  that  or 
any  otlier  date,  if  he  sees  fit,  because  this  the  constitution  empowers 
him  to  do;  but  this  act  neither  empowers  nor  requires  him  to  do  it: 
all  which  in  this  relation  it  enacts  is  rate  of  compensation  for  "con- 
suls" and  "  commercial  agents"  at  certain  places,  whenever  the  same 
shall  be,  or  may  have  been,  appointed;  that  compensation  to  take  ef- 
fect on  the  day  defined  by  the  act. 

Further  to  show  that  this  act  cannot  be  reasonably  construed 
as  intending  to  require  the  president  to  do  what  the  constitution,  on 
considerations  of  public  policy,  has  intrusted  to  the  sole  discretion 
of  the  executive,  may  be  mentioned  the  clause  of  the  act  which 
says,  that  the  president  shall  appoint  a  "consul"  at  Port-au-Prince. 
This,  if  done,  would  have  the  effect,  according  to  international  usage, 
of  placing  the  Haytien  empire  in  diplomatic  relation  with  the  United 

518 


OPINIONS  OF  ATTORNEYS  GENERAL 

States.  It  is  not  presumed  that  such  was  the  purpose  of  the  law- 
makers; yet  such  is  the  necessary  effect  of  the  law,  if  the  words  "shall 
appoint"  are  mandatory  in  operation.  If  they  are  mandatory  in 
any  case,  they  are  in  all :  if  not  mandatory  in  one  case,  they  are  so 
in  none. 

Another  illustration,  which  this  act  itself  affords,  of  the  neces- 
sity of  leaving  the  powder  of  determining  when  and  at  what  places  to 
appoint  officers  of  this  class,  and  of  what  rank  to  appoint  them, 
where  the  constitution  placed  it — in  the  hands  of  the  executive — 
is  the  provision  for  establishing  "commercial  agents"  in  five  of  the 
colonies  of  the  Netherlands.  This  provision  has  apparent  reference 
to  the  fact,  which  once  existed,  namely,  the  refusal  of  the  Nether- 
lands to  receive  consuls  in  their  colonies.  But  this  fact  no  longer 
exists;  for  the  (251)  convention  of  January  22,  1855,  between  the 
United  States  and  the  Netherlands,  and  the  ratifications  of  which 
have  been  exchanged,  stipulates  for  the  admission  of  consuls  general, 
consuls,  and  vice-consuls,  in  all  the  open  ports  of  the  transmarine 
possessions  of  the  Netherlands. 

Before  passing  from  this  part  of  the  act,  it  may  be  well  to  ob- 
serve that  the  phrase  in  the  4th  section,  which  forbids  certain  con- 
suls "to  transact  *  *  business  either  in  their  own  name  or  through 
the  agency  of  others,"  cannot  be  taken  literally;  for  if  so,  the  con- 
sul could  not  have  any  private  interests,  or  even  a  household,  all 
which  involve  the  transaction  of  business.  These  words  must  be  con- 
strued in  reference  to  the  mischief,  which  the  history  of  the  acts 
show  they  were  intended  to  remedy,  namely,  "trading  as  a  mer- 
chant," which,  undoubtedly,  the  provision  prohibits.  In  the  6th 
section  the  same  phrase  of  undue  generality  is  found,  but  there  it  is 
employed  in  the  sense  of  permission,  and  therefore  does  not  need 
to  be  carefully  scrutinized. 

In  forbidding  consuls  "to  transact  business,"  that  is,  "to  trade 
as  merchants,"  the  4th  section  further  says,  "under  the  penalty  of 
being  recalled  and  fined  in  a  sum  not  less  than  two  thousand  dollars. ' ' 

The  phrase  here  used, — "imder  the  penalty  of  being  recalled," 
like  that  in  the  12th  section  requiring  the  consul  to  collect  and  ac- 
count for  certain  fees  "under  the  penalty  of  being  removed  from 
office,"  is  of  dubious  legality.  I  do  not  think  dismissal  from  office 
can  be  enacted  by  statute  as  penalty.  "What  court  is  to  try  and 
judge?  Is  the  provision  designed  for  the  case  of  impeachment? 
It  does  not  say  this.  Does  the  act  mean  to  dictate  to  the  president 
when  to  remove  a  public  officer?  That  cannot  be.  The  power  of 
removal,  and  the  absolute  right  to  exercise  it  according  to  his  con- 
science, like  the  power  of  appointment,  he  holds  by  the  constitution. 

519 


Vol.  VII,  p.  242  (GUSHING) 

Besides,  it  is  neither  convenient  nor  according  to  the  analogies 
of  our  political  system,  to  consider  removal  from  office  the  infliction 
of  a  legal  penalty.  A  penalty  is  the  result  of  a  legal  process.  Dis- 
missal from  office  belongs  to  a  different  class  of  administrative  or 
political  considerations,  resting  in  the  mere  executive  discretion  of 
the  president. 

(252)  On  the  whole,  this  provision  of  the  statute  must  be 
deemed  iuexecutable. 

No  provision  is  made  as  to  the  process  by  which  this  fine  of  two 
thousand  dollars  is  to  be  recovered.  In  the  case  of  another  violation 
of  duty,  the  20th  section  indicates  the  remedy  by  indictment  under 
the  act  of  July  20th,  1840.  Possibly  the  same  remedy  would  apply 
here,  as  the  act  referred  to  makes  consuls  and  commercial  agents 
indictable  "for  all  malversation  and  corrupt  conduct  in  office."  (v 
Stat,  at  Large,  p.  397.)  I  should  be  more  confident  on  this  point, 
but  for  the  fact  of  the  present  act  singling  out  the  misdemeanor  of 
the  20th  section  is  indictable  under  the  act  of  July  20,  1840,  and 
thus  raising  negative  inference  as  to  the  applicability  of  the  penal 
process  of  that  law  to  the  other  new  definitions  of  misconduct  in  office. 
Possibly  the  present  fine,  if  not  recoverable  by  indictment,  might  be 
reached  by  an  action  of  debt  in  the  name  of  the  United  States. 

The  foregoing  observations  afford  a  reply  to  several  of  the  points 
of  inquiry  verbally  indicated  by  you,  and  also  to  three  others  of  the 
questions  of  the  written  memorandum  of  the  17th  ultimo,  namely : 

Can  consuls  not  newly  appointed  or  reappointed  at  the  places 
named  in  the  act,  receive  the  salaries  therein  affixed  to  said  places 
respectively  ? 

Can  the  president  appoint  or  retain  consuls  at  places  where  there 
are  now  consuls,  but  with  no  provision  in  the  act  for  consuls  at  such 
places? 

Can  the  president,  by  and  with  the  advice  of  the  senate,  appoint 
consuls  at  places  where  there  are  now  no  consuls,  and  with  no  pro- 
rision  in  the  act  for  consuls  at  such  places? 

To  each  of  these  questions,  my  reply  is  in  the  affirmative.  The 
act  has  operation,  in  respect  of  salary,  as  to  consuls  at  the  places 
named,  without  their  being  reappointed;  such  as  have  been  lawfully 
appointed  continue  in  office  until  their  present  commissions  are 
"withdrawn ;  and  the  president  can,  with  concurrence  of  the  senate, 
appoint  consuls  at  any  place  whatever,  whether  they  be  mentioned 
in  the  act  or  not. 

The  appropriation  act  of  the  last  session  of  congress  contains 
(253)  an  item  of  two  hundred  and  seventy-on(»  thousand  seven  hun- 
dred and  fifty  dollars  "for  the  consuls  of  the  United  States,"     All 

520 


OPINIONS  OF  ATTORNEYS  GENERAL 

the  observations  concerning  the  similar  appropriation  for  envoys,  in 
the  same  act,  apply  to  this  appropriation  for  consuls. 

The  next  question  is, — Can  vice-consuls  and  consular  agents  be 
appointed  after  this  act  goes  into  operation  ? 

Undoubtedly.  The  act  provides  for  consuls  or  commercial 
agents  at  certain  places;  but  does  not  contain  any  phrase,  which, 
either  expressly  or  impliedly,  forbids  the  appointment  of  consuls  or 
commercial  agents  at  other  places,  or  the  appointment  of  vice-consuls 
or  consular  agents.  If  it  did,  the  prohibition  would  be  without  ef- 
ficacy. Instead  of  even  professing  to  do  this,  although  the  act  pro- 
vides places  and  salaries  for  consuls  and  commercial  agents  only, 
yet,  in  the  9th  section,  it  expressly  recognizes,  by  name,  and  regulates, 
in  some  respects,  vice-consuls  and  consular  agents.  While  so  men- 
tioning and  regulating  them,  it  leaves  untouched  the  law,  whatever 
it  is,  by  which  their  existence  and  their  functions  are  determined. 

Next  comes  the  question, — What  is  the  operation  of  this  act  in 
respect  to  fees,  so  far  as  regards  the  consuls  and  commercial  agents 
to  whom  the  act  gives  salary  ? 

In  order  to  answer  this  question  satisfactorily,  it  becomes  neces- 
sary to  analyze  the  various  pertinent  provisions  of  the  act. 

In  the  first  place,  it  does  not  contain  any  general  clause  of  re- 
peal. At  its  close,  instead  of  the  usual  phrase, — "All  acts  or  parts  of 
acts  inconsistent  herewith  are  hereby  repealed," — it  says, — "The 
provisions  of  this  act  to  take  effect,"  on  a  certain  day,  "any  law  or 
laws  of  the  United  States  to  the  contrary  notwithstanding."  Of 
course,  the  section  leaves  the  question,  of  what  the  act  repeals,  to 
depend  on  other  parts  of  it,  and  its  general  tenor. 

In  the  second  place,  the  act  in  its  general  tenor  is  affirmative ; 
and  the  established  rule  of  law  in  this  respect  is,  that  "an  affirmative 
statute  does  not  repeal  a  precedent  afiirmative  statute;  and  if  the 
substance  be  such  that  both  may  stand  together,  they  shall  have  a 
concurrent  efficacy."  (Dwarris  on  Sta-  (254)  tutes,  p.  474.)  Of 
course,  on  the  point  whether  any  provision  of  this  act  repeals  by  im- 
plication of  identity  of  subject  matter  any  provision  of  previous 
acts,  it  will  be  necessary  to  consider  whether  the  two  provisions  com- 
pared are  incapable  of  concurrent  efficacy. 

If  the  act  professed  to  revise  the  question  of  consular  regula- 
tion as  a  whole,  then  it  might  by  implication  repeal  former  acts, 
(Bartlett  v.  King,  xii  Mass.  R.  p.  548 ;  Commonwealth  v.  Cooley,  x 
Pick.  R.  p.  40.)  But  this  it  does  not  undertake  to  do.  And  law 
does  not  favor  repeal  by  implication.  (Snell  v.  Bridgewater  Manu- 
facturing Company,  xxiv  Pick.  p.  296.)  Hence,  a  later  statute  on 
a  given  subject,  not  repealing  an  earlier  one  in  terms,  is  not  to  be 

521 


Vol.  VII.  p.  242  (GUSHING) 

taken  as  a  repeal  by  implication,  unless  it  is  plainly  repugnant  to 
the  former,  or  unless  it  fully  embaces  the  whole  subject-matter.  (God- 
dard  v.  Barton,  xx  Pick.  p.  410.) 

In  the  third  place,  the  act  refers  to,  and  amends  expressly,  or 
adopts  for  new  purposes,  parts  of  previous  acts  in  several  instances; 
as  the  acts  of  February  28,  1803,  and  of  July  20,  1840,  in  the  19th 
section,  and  that  of  April  14,  1792,  in  the  21st.  Of  course  it  does 
not  in  other  respects  repeal  those  acts. 

Finally,  it  contains  provisions  expressly  repealing  particular 
things  assumed  to  be  allowable  by  previous  acts:  as  allowances  of 
"clerk  hire  and  office  rent,"  in  the  26th  section;  "fees  for  the 
signing  and  verification  of  passports,"  in  the  13th;  and  "commissions 
for  receiving  or  disbursing  wages  or  extra  wages  of  discharged  sea- 
men," in  the  14th.  Such  cases  of  express  repeal  in  a  statute,  espec- 
ially of  certain  individual  things  of  a  class,  are  the  ordinary  im- 
plication that  all  other  things  of  the  same  class  remain  unrepealed. 

Bearing  in  mind  these  premises,  let  us  now  see  what  the  12th 
section  of  the  act  says  on  the  subject  of  fees  of  consuls  and  com- 
mercial agents. 

Its  language,  we  have  seen,  is  very  peculiar,  as  follows: 

"Sec.  12.  And  be  it  further  enacted,  "That  it  shall  be  the  duty 
of  consuls  and  commercial  agents  to  charge  the  following  fees  for 
performing  the  services  specified,  for  which,  under  the  penalty  of 
being  removed  from  office,  they  shall  account  to  the  (255)  govern- 
ment at  the  expiration  of  every  three  months,  and  hold  the  proceeds 
subject  to  its  drafts: 

"For  receiving  and  delivering  ships'  papers,  half  cent  on  every 
ton,  registered  measurement,  of  the  vessel  for  which  the  service  is 
performed. 

"For  every  seaman  who  may  be  discharged  or  shipped  at  the 
consulate  or  commercial  agency,  or  in  the  port  in  which  they  are 
located,  one  dollar;  which  shall  be  paid  by  the  master  of  the  vessel. 

"For  every  other  certificate,  except  passports, — the  signing  and 
verification  of  which  shall  be  free, — two  dollars." 

This  provision  imposes,  in  terms,  a  special  duty  on  "consuls 
and  commercial  agents,"  which  is,  to  collect  certain  fees  for  the 
benefit  of  the  government. 

Does  this  provision,  in  terms,  forbid  the  receipt  of  any  other 
fees?     Undoubtedly  not. 

Let  us  assume  the  case  of  some  other  fee,  which  "consuls  and 
commercial  agents"  are  now  permitted  by  statute  to  demand,  and 
reason  upon  it:  for  instance,  the  fees  for  taking  charge  of,  and  pay- 

522 


OPINIONS  OF  ATTORNEYS  GENERAL 

ing,  or  delivering  over,  the  effects  of  decedents,  citizens  of  the 
United  States,  within  their  jurisdiction. 

The  act  of  April  14,  1792,  entitled  ''An  act  concerning  consuls 
and  vice-consuls,"  contains  the  following  provisions: 

"For  the  taking  into  possession,  inventorying,  selling,  and  final- 
ly settling,  and  paying,  or  transmitting  as  aforesaid,  the  balance 
due  on  the  personal  estate  left  by  any  citizen  of  the  United  States, 
who  shall  die  within  the  limits  of  his  consulate,  five  per  centum  on 
the  gross  amount  of  such  estate. 

"For  taking  into  possession,  and  otherwise  proceeding  on  any 
such  estate,  which  shall  be  delivered  over  to  the  legal  representative 
before  a  final  settlement  of  the  same,  as  is  hereinbefore  directed,  two 
and  a  half  per  centum  on  such  part  delivered  over  as  shall  not  be 
in  money,  and  five  per  centum  on  the  gross  amount  of  the  residue." 

Is  this  fee  withdrawn  by  the  12th  section  of  the  present  act? 
I  think  not.  There  is  no  phrase  in  it  which  hints  at  such  repeal. 
"Was  it  the  design  of  the  section  to  require  the  collection  of  certain 
fees,  and  those  only?  If  so,  the  section  does  not  say  (256)  this:  it 
contains  not  a  single  word  of  general  exclusion  or  prohibition. 

Nor  can  it  by  any  established  rule  of  construction  be  held  to 
imply  this;  for  the  enactment  that  it  shall  be  the  duty  of  "consuls 
and  commercial  agents"  to  collect  and  pay  over  to  the  government 
certain  particular  fees,  is  perfectly  compatible  with  their  lawfully 
demanding  and  receiving  other  fees,  whether  the  same  be  or  not 
specified  as  the  property  of  the  government. 

Finally,  in  another  part  of  the  act,  there  is  a  provision  which, 
though  out  of  its  natural  place,  and  thrown  in  where  it  is  incidentally 
as  it  were,  yet  must  be  held  to  settle  this  point. 

The  21st  section  has  for  its  main  object  to  amend  the  act  of 
April  14,  1792,  so  as  to  make  it  the  duty  of  the  consul,  in  settling 
the  estate  of  a  decedent,  to  observe  any  directions  regarding  the 
same,  which  the  deceased  may  have  given  ' '  by  will  or  other  writing ; ' ' 
and,  if  such  were  the  direction,  then  to  hand  over  the  effects  to  any 
appointee  of  the  deceased;  in  which  case,  to  the  end  of  protecting 
the  property  from  local  interference,  the  consul  is  "  to  place  his  official 
seal"  on  it,  and  to  break  and  remove  the  same  only  at  the  request 
of  the  appointee:  "he,  the  said  consul  or  commercial  agent,  receiving 
therefor  two  dollars  for  each  seal."  Appended  to  the  enactment 
of  a  particular  fee  in  a  particular  case  is  the  following  general  pro- 
vision: "which,  like  all  other  fees  for  consular  service,  including  all 
charges  for  extension  of  protest,  as  also  such  commissions  as  are  al- 
lowed by  existing  laws  on  settlement  of  estates  of  American  citizens 

523 


Vol.  Vll,  p.  242  (GUSHING) 

by  consuls  and  commercial  agents,  shall  be  reported  to  the  treasury 
department,  and  held  subject  to  its  order." 

This  enactment,  wliich  seems  to  have  come  in  by  amendment, 
or  at  least  without  recollection  of  the  tenor  of  the  12th  section,  where 
it  properly  belongs,  completes  the  proof,  that  the  act  does  not  repeal 
nor  modify  any  fees  or  commissions,  except  those  which  it  expressly 
mentions  in  that  sense,  and  that  it  leaves  all  others  to  stand  on  ex- 
isting laws  or  regulations  of  the  department. 

It  remains  to  consider  how  the  act  operates  on  the  fees  for  con- 
sular service  receivable  by  consuls  and  commercial  agents. 

(257)  By  the  12th  and  21st  sections,  together,  it  is  made  the 
duty  of  consuls  and  commercial  agents  mentioned  therein  to  hold 
the  proceeds  of  fees  for  consular  service  subject  to  the  order  or  draft 
of  the  government. 

What  shall  be  done  with  the  proceeds,  by  the  government,  the 
act  does  not  determine.  Of  course,  it  passes  to  the  account  of  the 
imappropriated  miscellaneous  funds  of  the  treasury. 

The  punishment,  indicated  for  failing  thus  to  account,  is  "the 
penalty  of  being  dismissed  from  office."  We  have  seen  that  this 
penal  provision  is  without  possibility  of  legal  effect. 

But  another  statute  supplies  the  requisite  sanction.  The  act,  re- 
quired to  be  performed,  is  of  such  nature  as  to  bring  the  consuls  and 
commercial  agents,  of  whom  it  speaks,  within  the  purview  of  the 
act  of  August  6,  1846,  for  the  better  organization  of  the  treasury, 
and  for  the  collection,  safe  keeping,  and  disbursement  of  the  public 
revenue ;  by  one  of  the  sections  of  which,  the  refusal  of  any  person  to 
pay  any  draft  lawfully  drawn  on  him  for  public  money  in  his  hands, 
is  declared  to  be  an  indictable  felony,     (ix  Stat,  at  Large,  p.  62.) 

In  this  case,  also,  as  in  that  of  the  penal  provision  of  the  12th 
section,  we  may  recur  in  aid  to  the  act  of  April  14,  1792,  and  to  the 
bond,  which  that  act  requires  of  consuls,  conditioned  for  the  true 
and  faithful  discharge  of  the  duties  of  their  office  according  to  law. 
(i  Stat,  at  Large,  p.  256.) 

But  what  are  "all  other  fees  for  consular  service,"  which,  by 
a  seeming  afterthought  of  the  act.  as  incidental  to  a  secondary  mat- 
ter of  regulation,  and  with  iteration  of  enactment  of  the  words  of 
destination  of  the  12th  section,  are  thus  added  to  the  fees,  which  con- 
suls are  to  exact  hereafter  as  collectors  for  the  government? 

It  is  obvious  that  many  fees,  which  it  has  heretofore  been  for 
the  interest  of  the  consul  to  demand  on  his  own  account,  he  must  now 
demand  as  a  mere  public  duty  for  the  sole  benefit  of  government. 

On  this  point  the  government,  if,  in  pursuance  of  the  under- 
stood theory  of  the  act,  it  aims,  by  fees  collected,  to  be  indemnified 

524 


OPINIONS  OF  ATTORNEYS  GENERAL 

for  its  outlay  in  the  salaries,  is  brought  into  immediate  conflict  of 
interest  with  every  consul,  and  with  every  person  (258)  transacting 
business  with  any  consul.  The  merchant  or  ship  master  will,  of 
course,  desire  to  pay  the  least  he  may;  and,  while  the  consul  will 
have  no  personal  inducement  to  be  critical  in  exacting  "fees  for 
consular  service, ' '  he  will  incline  to  inquire  what  fees,  if  any,  are  not 
consular,  and  so  not  the  property  of  the  government. 

In  determining  this  point,  we  have  to  collate  all  those  discon- 
nected parts  of  the  act,  which  are  correlative  in  sense,  to  consider 
them  in  subordination  to  the  general  theory  of  the  act,  and  to  com- 
pare them  with  previous  laws,  and  with  the  regulations  of  the  depart- 
ment. 

I  venture  to  submit  only  some  hasty  observations  on  the  subject. 

To  begin, — the  tenor  of  the  act,  as  we  have  already  seen,  except 
in  the  two  or  three  cases  where  it  makes  change  expressly,  leaves 
untouched  the  question  of  the  particular  services  for  which  fees  are 
to  be  charged. 

I  now  add  that  it  leaves  untouched  the  existing  regulations  of 
the  department  in  such  matters,  and  its  power  to  make  pertinent  new 
regulations. 

The  12th  section  takes  up  the  tonnage  duty,  which  is  to  be  levied 
hereafter,  in  place  of  a  fixed  fee,  for  receiving  and  delivering  a  ship 's 
papers ;  the  fee  of  one  dollar  for  every  seaman  discharged  or  shipped ; 
and  the  fee  of  two  dollars  "for  every  certificate;" — and  gives  them 
to  the  government. 

The  21st  section  disposes  of  a  prescribed  fee  of  two  dollars 
for  placing  the  official  seal  in  certain  cases  on  the  property  of  de- 
cedents, and  removing  it  when  duly  requested,  and  "all  other  fees 
for  consular  service,  including  all  charges  for  extension  of  protest, 
as  also  such  commissions  as  are  allowed  by  existing  laws  in  settle- 
ment of  estates : "  all  of  which  are  given  to  the  government. 

The  12th  section  forbids  making  any  charge  for  the  signing  and 
verification  of  passports. 

In  case  of  a  revision  of  the  table  of  fees,  this  item  deserves  re- 
examination. I  think,  under  the  old  system,  citizens  of  the  United 
States,  travelling  in  foreign  countries  on  business  or  pleasure,  as  a 
general  thing,  received  from  consuls  more  than  (259)  they  have  in 
return ;  and  that  complaints  on  this  point  might  have  come  with 
more  grace  from  the  consuls  themselves.  Now,  at  any  rate,  when 
consuls  are  to  receive  salaries  from  the  government,  but  to  collect 
fees  with  which  to  reimburse  the  public  treasury,  it  is  not  easy  to 
see  why  the  whole  cost  of  the  consular  establishment  should  be  cast 

525 


Vol.  YII.  p.  242  (GUSHING) 

on  merchants  and  ship  owners,  to  the  exemption  of  wealthy  travellers 
who  may  happen  to  have  occasion  for  the  services  of  consuls. 

The  14th  section  prohibits  commissions  on  receiving  or  disburs- 
ing the  wages  of  discharged  seamen,  or  money  advanced  to  seamen  in 
distress. 

The  26th  section,  in  effect,  prohibits  any  allowance  to  consuls 
on  account  of  "salaries  for  clerk  hire  and  office  rent;"  but  this  ap- 
plies only  to  a  few  exceptional  cases,  for  which  provision  has  been 
made  in  acts  of  appropriation. 

I  have  compared  these  provisions  of  law  with  the  table  of  fees 
now  cliarged  at  one  of  the  largest  ports  of  commerce,  and  perused 
the  remarks  and  queries  of  the  consul  thereon,  as  communicated  to  me 
by  your  letter  of  the  1st  instant,  and  submit  the  following  annota- 
tions: 

1.  In  the  terms  of  the  12th  section,  a  fee  of  "two  dollars"  is 
to  be  exacted,  in  behalf  of  the  government,  on  "every  certificate;" 
which  must  be  constnied  to  mean, — certificate  under  the  seal  of  the 
consulate. 

2.  The  record  to  be  kept  by  the  consul  seems  to  be  an  official 
duty,  and  of  course  the  fees  therefor  belong  to  the  government. 

3.  The  making  of  copies  is  a  clerical,  not  a  "consular  service," 
and  whatever  may  bo  paid  for  copies  belongs  to  the  consul. 

4.  Drawing  out  a  power  of  attorney,  bottomry  bond,  will,  or 
any  similar  service,  is  a  notarial,  not  a  consular  act;  and  therefor 
only  the  certificate  upon  it  would  go  to  account  of  the  government. 

5.  I  should  have  said  the  same  of  extending  a  protest,  but  for 
the  phrase  in  another  part  of  the  act, — "a  book  for  the  entry  of 
protests,  and  in  which  all  other  official  consular  acts  likewise  shall  be 
recorded," — which  seems  to  cover  the  fact  of  extending  a  protest, 
and  so  give  the  fee  to  the  government.  (260)  If  so,  there  should 
be  a  regulation  scale  of  fees  according  to  the  length  of  the  protest, 
as  in   England. 

6.  No  "commissions"  appear  to  be  disposed  of  by  the  act, 
pxoept  on  wages  advanced  to  seamen,  which  are  forbidden,  and  on 
the  estates  of  decedents,  which  go  to  the  government. 

7.  I  think  the  fees  collected  for  the  government  should  be  in 
our  o-v^Ti  coin,  or  its  representative  value  in  exchange. 

Without  extending  these  comments,  it  will  suffice  to  suggest, 
whether  it  be  not  expedient  that  the  whole  subject  of  consular  fees, 
whifh  the  present  act  leaves  in  its  previous  indefiniteness,  compli- 
cated by  the  new  provisions,  should  now  be  deliberately  revised  in 
the  consular  bureau  of  the  department. 

526 


OPINIONS  OP  ATTORNEYS  GENERAL 

Those  acts  of  a  consul,  for  which  compensation  was  charged  in 
the  old  system,  consisted  of  two  great  divisions,  namely : 

1.  Fees  taken  in  respect  of  matters  wherein  the  consul's  inter- 
position is  required  by  law,  such  as  the  custody  of  ships'  papers,  dis- 
charge of  seamen,  payment  of  wages  or  relief -money,  certificates  of 
invoices  and  other  acts  in  aid  of  the  revenue  laws,  and  custody  of 
the  estates  of  decedents. 

2.  Fees  taken  in  respect  of  matters  wherein  the  consul's  inter- 
position is  voluntary  on  the  part  of  the  person  calling  for  the  ser- 
vice, such  as  the  extension  of  protests,  the  preparation  of  conveyances, 
arbitration,  or  bottomry  bonds,  attending  sales,  attesting  signatures, 
and  furnishing  copies  of  documents. 

This  division,  again,  is  subdivisible  into  voluntary  acts,  which 
are  consular,  and  others  which  are  purely  clerical  or  notarial: 
which  distinction  is  expressly  recognized  by  the  regulations  of  the  de- 
partment.    (Consular  Instructions  of  1838,  ch.  viii.) 

To  meet  all  these  conditions  of  the  question,  other  governments, 
in  adopting  the  system  of  salaries  for  consuls,  have  been  compelled 
to  issue  very  explicit  and  stringent  regulations  to  secure  the  full  col- 
lection of  the  fees  due  the  government.  (See  the  British  ''Order  in 
Coimcil"  of  May  1,  1855,  London  Gazette,  May  11,  1855;  and  the 
French,  "Ordonnance  sur  les  Droits  de  Chancellerie,"  6  Novembre, 
1842,  in  De  Clerq,  Formulaire,  p.  50.) 

How  very  imperfect  our  whole  system  is  in  the  matter  of  these 
and  other  details,  will  be  fully  appreciated  on  a  perusal  (261)  of 
the  contents  of  De  Clerq 's  "Guide  des  Consulats"  and  his  "Form'u- 
laire." 

Remember,  it  is  certain  specified  fees  which  the  act  of  congress 
makes  it  'Uhe  duty"  of  the  consul  to  collect.  Is  it  his  duty  to  col- 
lect other  fees?  Unless  his  duty  in  this  respect  be  more  thoroughly 
defined,  it  is  to  be  feared  that  comparatively  little  of  those  fees, 
which  are  uncertain  in  amount,  and  for  voluntary  service,  or  ser- 
vice the  demand  for  which  is  voluntary,  will  or  can  be  compulsorily 
collected. 

The  acts  of  congress  do  not  contain  a  table  of  commissions  and 
fees.  They  prescribe  certain  fees  applicable  to  some  few  only  of  the 
acts  which  a  consul  now  performs.  All  other  fees,  including  those 
of  the  largest  production,  stand  on  usage  and  regulation,  and  re- 
quire to  be  reconsidered,  in  connection  with  other  parts  of  the  new 
system  proposed  by  congress. 

Next  comes  another  most  embarrassing  question.  The  act  does 
not  profess  to  abolish  vice-consuls  and  consular  agents;  on  the  con- 
trary, it  recognizes  their  continued  existence.     How  are  these  to  be 

527 


Vol.  VII,  p.  242  (GUSHING) 

paid?  No  salan-  is  allowed  them.  Possibly  it  was  the  original 
thought  of  the  act  to  consider  a  vice-consul  or  consular  agent  as  the 
mere  deputy,  or  locuyyi  tc7i^7is  of  the  consul,  and  to  be  paid  out  of 
the  sahiry  of  the  latter.     But  the  act  does  not  say  this, 

"When  a  consul  is  absent  from  the  consular  residence  on  leave, 
it  may  be  that  the  substitute,  who  supplies  his  place,  ought  to  receive 
the  salary,  or  a  part  of  it.  But  the  act  does  not  so  determine.  To 
the  contrary  of  this,  in  saying,  in  substance,  that,  if  he  be  absent  with 
permission  of  the  president,  his  salary, — which  if  he  belong  to  the 
class  of  consuls  forbidden  "to  transact  business,"  we  may  assume  to 
constitute  his  means  of  subsistence, — shall  continue,  it  implies  that 
the  salary  is  not  to  be  enjoyed  by  his  deputy.  Perhaps  the  president 
may  order,  as  the  condition  of  leave  to  a  consul,  that  he  shall  provide 
and  pay  a  deputy.  It  is  not  the  general  rule,  however,  in  other 
branches  of  the  public  service,  that  a  salaried  officer,  temporarily  ab- 
sent from  duty  on  express  leave  from  the  president,  pays  for  the 
service  of  a  substitute  during  such  absence. 

The  person,  thus  left  by  a  consul  at  the  consular  residence  (262) 
in  ad  interim  charge  of  the  consulate,  sometimes  bears  the  name  of 
"consular  agent;"  but  that  designation  better  describes  another  class 
of  persons,  namely,  an  agent  to  reside  at  some  other  port  or  place  de- 
pending on  the  consul.  It  would  seem  to  be  more  exact  to  call  a 
substitute  employed  by  the  consul  on  the  spot  his  "deputy;"  the 
person  employed  to  fill  the  place  temporarily  in  his  absence,  "vice- 
consul;"  and  to  apply  the  name  "consular  agent"  to  consular  of- 
ficers employed  in  outposts  within  a  given  consular  circumscription. 

Perhaps  the  usage  of  the  department,  in  applying  the  name 
"consular  agent"  to  the  suppleant  of  an  absent  consul,  officiating 
as  consul  intcrino  in  the  absence  of  the  consul  propietario,  grew  out 
of  the  supposition  that  the  vice-consuls,  by  inference  from  the 
act  of  1792,  or  otherwise,  could  only  be  appointed  by  nomination  to 
the  senate:  which  inference  is  negatived  by  the  tenor  of  treaties  and 
of  the  present  act.  Of  course,  no  obstacle  exists  to  the  systematic 
use  of  the  term  "consular  agent,"  according  to  its  proper  acceptation. 

Numerous  ports  exist,  which  are  more  or  less  remote  from  the 
location  of  any  consul,  but  in  which,  nevertheless,  consular  services 
are  needed  on  the  spot.  Must  the  consul  in  every  such  case  go  there 
for  the  special  occasion  ?  If  so,  he  incurs  expenses,  and  leaves  his 
own  port  without  his  presence.  On  the  other  hand,  if  the  consular 
services  are  not  such  as  must  of  necessity  be  performed  on  the  spot, 
it  will  be  inconvenient  and  expensive  for  the  shipmaster  to  be  com- 
pelled to  leave  his  ship,  and,  perhaps,  with  his  officers  and  men,  as 

528 


OPINIONS  OP  ATTORNEYS  GENERAL 

in  extending  a  protest  for  instance,  to  repair  to  the  place  of  residence 
of  the  consul. 

Under  the  old  system,  the  convenience  and  economy  of  all  parties 
were  consulted  by  the  appointment  of  a  vice-consul  or  consular  agent 
for  such  outports,  as  at  Nuevitas,  Cienfuegos,  and  Manzanilla,  in 
Cuba;  such  agent  collecting  the  fees,  and  retaining  the  whole  or  part 
as  compensation  for  his  services,  and  transacting  the  business  under 
the  direction  of  the  consul.  (Con.  Instructions  of  1838,  chap,  iv, 
s.  7.) 

But  the  future  relations  of  this  part  of  the  general  subject- 
matter  seem  to  have  escaped  the  vigilance  of  congress.  The  (263) 
act  does  not  require  the  consul  to  travel,  at  his  expense,  to  and  fro 
between  the  place  of  his  consular  residence  and  the  outposts  of  his 
consular  circumscription ;  it  does  not  require  him  to  divide  his  salary 
with  local  vice-consuls  or  consular  agents;  it  makes  no  provision 
whatever  for  the  case. 

All  these  contingencies  are  of  ordinary  occurrence,  and  are  pro- 
vided for  in  the  laws  and  regulations  of  other  governments  paying 
salaries  to  consuls,  as,  for  instance,  those  of  the  French  empire. 

Besides  which,  the  act  does  not  profess,  in  its  enumeration  of 
consuls,  to  be  exclusive;  there  is  no  such  phrase  in  it  as  "the  fol- 
lowing a7id  no  other;"  it  abolishes  no  consulates;  it  neither  in  fact 
nor  in  pretension  deprives  the  president  of  the  power  to  retain  con- 
suls at  places  where  they  now  exist,  but  which  are  not  named  in  the 
act,  and  to  appoint  them  where  they  do  not  now  exist;  as,  for  in- 
stance, to  retain  the  consul  at  Bilbao  or  Valencia,  at  Archangel  or 
Helsinfors,  or  the  commercial  agent  at  Larache,  or  appoint  a  new 
one  at  the  Moluccas,  at  Setubal,  at  Trapani,  at  Newport,  or  at  Ber- 
gen.    But  no  salary  is  allowed  by  the  act  to  any  such  consul. 

How  the  act  shall  be  construed  in  this  respect,  is  not  a  matter 
of  light  moment;  for  the  consuls  and  commercial  agents  of  the  act 
do  by  no  means  cover  all  the  seaports  and  centres  of  commerce  and 
resort  throughout  the  world,  which  are  visited  by  our  merchant  ships 
and  merchants,  or  which,  in  other  respects,  need  the  presence  and 
service  of  some  consular  representative  of  the  United  States. 

It  certainly  was  not  the  intention  of  the  act  to  cripple  the  com- 
merce of  the  country  by  depriving  it  of  the  benefit  of  vice-consuls 
and  consular  agents,  or  of  consuls,  at  any  place  where,  in  the  judg- 
ment of  the  executive,  such  an  officer  is  needed. 

Doubtless,  at  its  next  session,  congress  will,  in  its  wisdom,  supply 
these  deficiencies  by  suitable  supplemental  legislation.  Meanwhile, 
we  must  construe  the  act  as  it  stands. 

I  think  the  only  admissable  interpretation  of  it,  as  it  stands,  is 

529 


Vol.  YII,  p.  242  (GUSHING) 

to  conclude  that  the  consular  officers,  of  whatever  denomination,  for 
whom  salaries  are  provided  by  the  act,  are  to  pay  over  consular  fees 
which  they  receive;  and  that  all  other  consular  (264)  officers,  not 
thus  provided  for,  have  the  right  to  retain  all  of  the  lawful  fees,  which 
the  several  acts,  including  this,  and  the  regulations  of  the  depart- 
ment, allow  them  to  demand. 

This  construction  involves  the  inconvenience  of  some  of  the  con- 
sular officers  being  compensated  by  means  of  fees,  and  others  by 
salaries;  which  inconvenience,  however,  is  of  little  moment,  and  need 
be  of  but  temporary  duration,  because  easily  remediable  by  congress. 
Meanwhile  the  change  of  relative  interest,  which  the  new  state  of 
facts  will  introduce  between  consuls  and  vice-consuls,  or  consular 
agents,  seems  to  demand  some  corresponding  regulations  of  the  de- 
partment. 

It  may  be  proper  to  observe,  in  this  connection,  that  the  provision 
of  the  act  which  requires  the  consuls  mentioned  in  it  to  pay  over  the 
fees  which  they  collect,  cannot  apply  to  the  judicial  fees  receivable 
by  American  consuls  in  China  and  Turkey,  which  are  not  "consular 
fees,"  and  cannot  be  considered  by  this  act  as  withdrawn  from  the 
special  destination  ascribed  to  them  by  the  17th  section  of  the  act 
of  August  11th,  1848,  giving  certain  judicial  powers  to  consuls  of 
the  United  States  in  China  and  Turkey,  (ix  Stat,  at  Large,  page 
276.) 

Indeed,  the  consuls  at  the  Barbary  ports,  and  in  general  in 
other  Mohammedan  countries,  must  not  be  confounded,  in  respect 
of  functions  or  of  regulations,  with  the  consuls  established  in  the 
countries  of  Christendom,  Their  condition  is  referable  to  peculiar 
doctrines  of  the  law  of  nations;  and  they  are  governed  in  many  re- 
spects by  particular  treaties  and  acts  of  congress.  (See  "Wheaton's 
Elements,  by  Lawrence,  p.  167,  note.) 

In  my  communication  of  the  25th  ultimo,  suggestions  are  made, 
in  the  relation  of  public  ministers,  as  to  a  clause  in  this  act,  which 
provides,  among  other  things,  that  no  other  than  citizens  of  the 
United  States  who  are  residents  thereof,  or  who  shall  be  abroad  in 
the  employment  of  the  government,  shall  be  appointed  as  diplomatic 
officers,  or  as  "consuls  or  commercial  agents,"  and  that  no  other 
than  citizens  of  the  United  States  shall  be  employed  as  "vice-consuls 
or  commercial  agents,"  or  as  clerks  in  the  offices  of  either. 

I  reiterate,  hero,  the  opinion,  that  this  provision  has  effect  as 
(265)  recommendation  merely,  and  no  more.  The  president,  by  the 
advice  of  the  senate,  has  the  sole  and  complete  power  to  appoint  con- 
suls. 

In  respect  of  clerks,  the  provision  is  one  of  impossible  execution. 

530 


OPINIONS  OF  ATTORNEYS  GENERAL 

How  are  consuls,  and  clerks  of  consuls,  capable  of  speaking  and 
writing,  in  every  case,  the  language  of  the  country,  to  be  found 
among  citizens  of  the  United  States?  The  government  might  pro- 
duce such  persons,  by  instituting  the  grade  of  "eleves  consuls;"  but 
it  has  not  done  this ;  and  it  is  not  the  duty  of  consuls  to  provide  for 
the  education  of  competent  linguist  clerks,  citizens  of  the  United 
States.  Meanwhile,  how  is  the  public  business  to  go  on?  \Miat  is  to 
be  done  by  the  consuls  in  France,  Spain,  Portugal,  Netherlands,  and 
their  colonies;  in  Germany,  Denmark,  Russia,  and  in  all  the  coun- 
tries of  Dutch,  French,  Danish,  Spanish,  Portuguese,  America? 

Consider,  also,  those  consuls  at  places  where  a  small  salary 
only  is  allowed,  not  sufficient  to  pay  clerk  hire,  perhaps,  and  where 
the  consul  is  permitted  to  transact  business,  without  which  he  could 
not  live.  He  hires  and  pays  his  own  clerk.  Is  he  forbidden  to  em- 
ploy as  clerks  the  only  persons  whom  it  is  morally  possible  for  him 
to  employ,  and  whom  he  most  needs  in  his  business?  That  is  the 
apparent  effect  of  this  provision ;  and  of  necessity,  therefore,  it  must 
be  treated  as  directory  only,  and  not  mandatory,  on  the  consuls. 

As  to  the  consuls  themselves,  however  expedient  it  be,  in  general, 
to  fill  the  consulates  and  commercial  agencies  with  citizens  of  the 
United  States,  yet  places  exist  where  consular  services  are  necessary, 
but  where  no  American  resides,  or  can  be  tempted  to  reside  by  the 
grant  of  a  mere  commission  as  consul,  or  appointment  as  consular 
agent.  Surely,  if  the  government  absolutely  needs  to  have  a  certain 
service  performed  in  a  particular  place,  and  there  be  no  American 
to  perform  it,  the  service  may  be  performed  by  a  person  not  Amer- 
ican. To  assume  the  contrary,  is  to  push  considerations  of  mere 
policy  to  the  impolitic  result  of  rendering  the  performance  of  the 
public  service  impossible. 

Suppose  that,  along  the  whole  coast  of  Norway,  there  can  be  no 
consuls,  citizens  of  the  United  States.  Are  we  therefore  to  (266) 
understand,  that  all  the  acts  of  congress,  which  assure  consular  aid 
to  shipwrecked  or  distressed  mariners,  have  become  a  nullity?  That 
is  the  practical  operation  of  this  provision. 

When  the  act  says,  in  words,  that  the  government  shall  not  em- 
ploy as  consul  or  consular  agent  any  person  who  is  not  a  citizen  of 
the  United  States,  what  it  says  in  effect  is, — when  a  citizen  of  the 
'United  States  happens,  while  abroad,  to  stand  in  whatever  need  of 
consular  assistance,  he  shall  not  have  such  assistance,  however  great 
his  necessity,  because  no  American  resides  there  to  be  made  consul  or 
consular  agent. 

What  would  be  the  legal  operation  of  an  act  of  congress,  enacting 
directly,  that  no  citizen  of  the  United  States  abroad,  who  is  in  dis- 

531 


Vol.  VII,  p.  242  (GUSHING) 

tress,  or  who  needs  the  service  of  a  notary  or  counsel  learned  in 
the  law.  shall  be  relieved  or  served  unless  he  employs  another  Amer- 
ican, whether  such  American  exist  or  not? 

Cases  oecur,  also,  in  which  the  fittest  person  for  the  vacant  con- 
sulate at  a  given  place,  and  the  only  person  who  can  be  induced  to 
accept,  is  a  merchant  temporarily  residing  there,  although  by  birth 
and  education  a  citizen  of  the  United  States.  Is  that  person,  by 
such  abode  in  a  foreign  country,  disfranchised  ? 

That  the  general  disability  enacted  by  the  words, — "no  other 
than  citizens  of  the  United  States  who  are  residents  thereof," — 
comprehends  residence  abroad  though  retaining  citizenship,  is  proved 
by  the  general  structure  of  the  phrase,  which  requires  residence  at 
home,  in  addition  to  citizenship,  as  the  qualification  of  appointabil- 
ity.  That  such  "'residence,"  made  the  condition  of  disability,  in- 
cludes temporary  absence  from  the  United  States,  such  absence  as 
does  not  lose  domicile  even,  is  proved  by  the  only  exception  to  such 
disability,  which  consists  of  those  who  shall  be  abroad  in  the  employ- 
ment of  the  government  ''at  the  time  of  their  appointment."  How 
much  residence  abroad  disqualifies?  How  much  at  home  qualifies? 
A  year,  a  month,  or  a  day  ? 

"A  citizen  of  the  United  States,  not  resident  thereof  at  the 
time,"  signifies,  in  the  context  where  it  here  stands,  one  who  is  in 
Paris,  London,  Rome,  six  months,  one  month,  for  the  pur-  (267) 
poses  of  instruction  or  business.  Such  person  is  capable  of  being 
appointed  Chief  Justice  of  the  Supreme  Court  or  elected  President 
of  the  United  States.  Is  he  incapable  of  "being  appointed"  to  a 
mere  consular  agency? 

The  argument  of  bare  legal  construction  stands  thus: — Laws 
can  be  executed  only  through  the  instrumentality  of  agents  of  execu- 
tion. There  is  a  body  of  laws  for  the  protection  of  the  rights  of 
citizens  of  the  United  States  in  foreign  countries,  the  lawful  agents 
for  executing  which  are  consuls.  Not  to  appoint  consuls  at  the  re- 
quisite places  would  be  the  effectual  nullification  of  those  laws  pro 
tanto,  just  as  the  omission  to  appoint  judges,  marshals,  commissioners, 
and  other  officers  of  the  law,  in  a  given  district  of  the  United  States, 
would  have  the  effect,  in  that  district,  to  nullify  the  acts  of  congress, 
and  produce  the  suspension  therein  of  all  rights  and  remedies  based 
on  the  constitution  of  the  Union.  If  the  obstacle  to  such  appoint- 
ments con.sist  in  the  words  of  a  particular  statute,  which,  if  construed 
as  mandatory,  have  all  the  consequences  of  annulment  to  the  laws  in 
force,  we  necessarily  conclude  that  congress  did  not  intend  such 
words  in  a  mandatory  sense.    For  all  the  laws  in  pari  materia  are  to 

532 


OPINIONS  OF  ATTORNEYS  GENERAL 

be  construed  together,  so  as  from  the  whole  mass  to  collect  the 
legal  intendment  of  congress. 

In  deference  to  this  recommendatory  enactment  in  the  nature 
of  mere  departmental  regulation,  or  to  considerations  of  public  policy, 
the  president,  in  making  appointment  of  a  citizen,  may  look  to  the 
fact  where  he  happens  at  the  moment  to  be ;  but  he  has,  in  my  opinion, 
absolute  right  to  select  for  appointment  without  regard  to  that  cir- 
cumstance, subject  always  to  the  approbation  and  consent  of  the 
senate. 

It  is  the  constitutional  duty  of  the  president  to  take  care  that 
the  laws  be  faithfully  executed.  It  is  his  constitutional  right  to 
nominate,  and,  with  the  advice  of  the  senate,  to  commission,  the 
agents  by  whom  the  laws  are  to  be  executed.  If  he  cannot  find  fit 
agents  of  one  description,  he  may,  nay,  he  must,  employ  others,  or 
be  false  to  his  high  obligations  as  the  Executive  of  the  United  States. 

You  suggest  a  question  arising  on  the  14th  section  of  the  act, 
which  forbids  any  consul  or  commercial  agent  to  be  directly  or  (268) 
indirectly  interested  in  any  "profits  derived  from  *  *  *  sending 
home"  discharged  seamen  or  seamen  in  distress. 

The  act  of  February  28,  1803,  section  4,  enacts  that  it  shall  be 
the  duty  of  consuls  "to  provide  for  the  mariners  and  seamen  of  the 
United  States  who  may  be  found  destitute  within  their  districts  re- 
spectively, sufficient  subsistence  and  passage  to  some  port  in  the 
United  States,  in  the  most  reasonable  manner,  at  the  expense  of  the 
United  States;"  and  penalties  are  enacted  to  compel  masters  of  ves- 
sels belonging  to  the  United  States  to  receive  such  seamen,  on  re- 
quest of  the  consul,  and  transport  them  to  the  United  States,  receiv- 
ing as  compensation  "not  exceeding  ten  dollars  for  each  person." 
(ii  Stat,  at  Large,  p.  204.) 

Now,  what  is  to  be  done  in  the  case  of  ports  (and  such  ports 
exist)  where  it  happens  that  many  seamen  are  discharged  from  whal- 
ing or  other  vessels,  and  no  reasonable  or  direct  means  exist  for  trans- 
porting them  to  the  United  States,  except  in  a  vessel  belonging  to 
the  consul,  he  being  of  the  class  allowed  to  transact  business  ? 

We  cannot  dispose  of  this  question  by  the  rule  that  posterior 
laws  repeal  prior  incompatible  ones.  The  act  of  1803,  and  the  acts 
in  amendment  of  it,  are  not  repealed  by  the  present  act;  on  the 
contrary,  they  are  expressly  recognized  as  in  full  force,  and  especially 
in  this  particular  matter  of  the  duty  of  consuls  towards  seamen  of  the 
United  States. 

I  suppose  the  expression  in  the  act, — "profits  derived  from 
•  *  *  sending  home"  seamen, — refers  to  the  ten  dollars  paid  by  the 
government  for  every  destitute  seaman  transported  to  the  United 

533 


Vol.  VII,  p.  242  (GUSHING) 

States.  This  transportation,  with  the  maximum  price  allowed,  is 
a  burden  to  the  shipowner,  instead  of  a  profit.  If  the  prohibitory 
provision  of  the  act  be  applied  without  exception,  it  will  in  effect  re- 
lieve the  shipowner  in  many  cases,  but  involve  inconvenience  to  mari- 
ners, and  additional  expense  to  the  United  States. 

I  think  this  provision,  which  belongs  by  its  nature  to  the  class 
of  matters  of  departmental  regulation,  must  be  held  in  law  to  be 
directory  only,  not  mandatory,  and  so  treated  by  the  department. 

(269)  Question  has  been  suggested,  also,  as  to  whether  the  dis- 
cretion given  to  consuls,  in  certain  cases,  by  the  act  of  July  20,  1840, 
regarding  the  amount  of  wages  to  be  exacted  of  the  shipmaster  when 
the  seamen  are  discharged  in  foreign  ports,  still  continues.  I  think 
it  does:  the  present  act  does  not  seem  to  contain  anything  affecting 
that  point. 

There  is  a  provision  of  the  act,  referred  to  already  in  another 
relation,  namely,  the  main  one  of  the  21st  section,  which  demands 
consideration.     It  is  in  the  following  words: 

"The  act  of  April  14th,  1792,  concerning  consuls,  &c.,  is  hereby 
so  amended  that,  if  any  American  citizen  dying  abroad  shall,  by  will 
or  any  other  ^\•riting,  leave  special  directions  for  the  management 
and  settlement  by  the  consul  of  the  personal  or  other  property  which 
he  may  die  possessed  of  in  the  country  where  he  may  die,  it  shall  be 
the  duty  of  the  consul,  where  the  laws  of  the  country  permit,  strictly 
to  observe  the  directions  so  given  by  the  deceased.  Or,  if  such  citi- 
zens so  dying  shall,  by  will  or  an}"-  other  writing,  have  appointed  any 
other  person  than  the  consul  to  take  charge  of  and  settle  his  affairs, 
in  that  case  it  shall  be  the  duty  of  the  consul,  when  and  so  often  as 
required  by  the  so-appointed  agent  or  trustee  of  the  deceased,  to  give 
his  official  aid  in  whatever  Avay  may  be  necesvsary  to  facilitate  the 
operations  of  such  trustee  or  agent,  and,  where  the  laws  of  the 
country  permit,  to  protect  the  property  of  the  deceased  from  any 
interference  of  the  local  authorities  of  the  country  in  which  he 
may  have  died ;  and  to  this  end  it  shall  also  be  the  dut^  of  the  consul 
to  place  his  official  seal  on  all  or  any  portion  of  the  property  of  the 
deceased  as  mfiy  be  required  by  the  said  agent  or  trustee,  and  to 
break  and  remove  the  same  seal  when  required  by  the  agent  or 
trustee,  and  not  otherwise." 

In  the  execution  of  this  provision,  consuls  will  need  to  exercise 
much  discretion  and  care. 

We  are  to  presume  this  enactment  adds  to,  or  otherwise  changes, 
the  pre-existing  law;  and  the  question  is,  in  what  respect? 

The  provisions  of  the  act  of  April  14,  1792,  in  relation  to  the 
matter,  are,  that,  in  certain  cases,  if  any  citizen  of  the  United  States 

534 


OPINIONS  OF  ATTORNEYS  GENERAL 

die  abroad,  the  consul,  within  whose  consulate  it  (270)  happens,  shall 
take  possession  of  all  "personal  estate"  of  the  deceased  in  the  coun- 
try where  he  dies,  inventory  it,  sell  it,  collect  and  pay  local  credits  and 
debts,  and  remit  the  balance  to  the  treasury  of  the  United  States, 
to  be  held  in  trust  for  the  legal  claimants. 

The  contingencies,  in  which  the  consul  may  thus  collect  the  as- 
sets of  a  decedent,  free  them  from  local  incumbrance,  and  remit  them 
to  the  treasury,  are  three,  namely :  1,  If  the  deceased  shall  have  left 
no  "legal  representative"  within  the  consulate;  2,  no  "partner  in 
trade;"  and  3,  no  "trustee  by  him  appointed  to  take  care  of  his  ef- 
fects." 

If,  at  any  time  before  the  collection  and  transmission  of  the  as- 
sets shall  have  been  completed,  the  "legal  representative"  of  the  de- 
ceased appears,  then  the  authority  of  the  consul  in  regard  to  the 
estate  ceases,  and  the  management  of  its  passes  into  the  hands  of 
such  legal  representative. 

The  new  act  provides,  in  the  first  place,  that  if  the  deceased  shall 
"by  will  or  any  other  writing  leave  special  directions  for  the  man- 
agement and  settlement,  hy  the  consul,  of  the  personal  or  other  prop- 
erty which  he  may  die  possessed  of  in  the  country  where  he  may  die," 
it  shall  be  the  duty  of  the  consul  to  observe  those  directions. 

The  act  does  not  say  what  consul;  but,  by  collation  with  the  pre- 
existing law,  we  may  construe  this  to  mean  the  consul  within  whose 
consulate  the  party  dies. 

The  act  in  effect  assumes  further,  that  the  consul  is  to  take 
possession  of  "personal  and  other  property."  That  is  to  extend  the 
jurisdiction  oi  the  consul  beyond  what  he  previously  possessed,  and 
into  doubtful  regions. 

It  is  perfectly  clear  that  nothing  in  the  previous  acts  empowers 
the  consul  to  sell  any  real  estate  of  the  deceased;  nor  can  the  pro- 
visions of  the  present  act  communicate  such  power,  even  if  directed 
by  will ;  for  the  will  would  have  to  be  proved  and  allowed  as  such  in 
order  to  pass  real  estate.  Nor  can  the  act  be  construed  to  intend 
what  it  apparently  says,  that  in  the  "management  and  settlement" 
of  the  estate,  the  consul  is  to  observe  any  such  directions  as  the  de- 
ceased may  have  left  "by  will  or  any  other  writing."  If  there  be  a 
will,  or  any  writing  (271)  possessed  of  testamentary  value,  there  will 
be  an  executor,  or  administrator  with  the  will  annexed,  and  he  must 
settle  the  estate  according  to  law, 

I  presume  the  sole  effect  of  this  part  of  the  section  to  be,  that, 
in  the  performance  of  such  acts  regarding  the  estate  as  the  consul 
may,  by  virtue  of  the  act  of  April  14,  1792,  lawfully  perform,  namely, 
taking  the  custody  of  the  property,  preserving  it  from  waste,  collect- 

535 


Vol.  VII,  p.  242  (GUSHING) 

ing  credits,  paying  local  debts,  and  selling  the  personal  estate  for 
transmission  to  the  treasury,  the  consul  shall,  in  the  absence  or  non- 
appearance of  the  executor,  co-partner,  or  other  "legal  representa- 
tive" of  the  deceased,  observe  such  directions  as  the  latter  may  have 
given  him  as  to  such  mere  provisional  acts  of  consular  intervention  in 
the  estate. 

The  new  act  provides,  in  the  second  place,  that  "if  such  citizen 
on  dying  shall,  by  will  or  any  other  writing,  have  appointed  any  other 
person  than  the  consul  to  take  charge  of  and  settle  his  affairs,"  as 
"agent  or  trustee,"  then  the  consul  shall  officially  aid  such  agent  or 
trustee  in  his  duty,  and  shall,  so  far  as  he  lawfully  may,  secure  the 
property  of  the  deceased  to  such  agent  or  trustee,  as  against  the 
interference  of  the  local  authorities. 

This  enactment,  like  the  foregoing  one,  must  be  understood  as 
having  reference  only  to  such  acts  of  a  lawfully  appointed  "agent  or 
trustee  of  the  deceased,"  as  any  such  "agent  or  trustee"  may  per- 
form in  the  absence  of  the  "legal  representative"  of  the  deceased, 
who,  on  his  appearance,  will  supersede,  not  only  the  consul,  but  any 
such  provisional  agent ;  and  in  ease  of  controversy  between  such 
agent  or  trustee  and  the  legal  representative  of  the  deceased,  it  will 
be  the  duty  of  the  consul  to  aid  the  latter,  to  whom  the  paramount 
and  exclusive  right  to  control  the  property  belongs  in  all  circum- 
stances. 

To  undertake  to  carry  the  authority  of  the  consul  beyond  this 
point,  or  in  any  other  directions,  would  be  to  involve  him  in  hazard- 
ous responsibility. 

A  citizen  of  the  United  States  is,  in  almost  every  supposable 
case,  a  citizen  of  some  state  or  territory  of  the  United  States,  or  of 
the  District  of  Golumbia.  Ilis  private  rights  of  property  and  of 
person  depend,  all  but  universally,  on  the  law  of  his  (272)  state, 
of  his  territorj"-,  or  of  the  District  of  Columbia.  No  act  of  congress 
makes  general  provision  for  the  forms  of  deeds  or  wills,  the  distri- 
bution of  estates  of  decedents,  the  regulation  of  contracts,  or  other 
things  of  that  nature  in  the  affaires  of  a  citizen  of  the  United  States. 
No  act  of  congress  can  constitutionally  do  this  in  regard  to  the  citi- 
zen of  any  state,  whatever  it  may  do  as  to  the  citizen  of  a  territory, 
or  of  the  District  of  Golumbia.  I,  for  instance,  am  a  citizen  of  the 
United  States,  but  a  citizen,  also,  of  the  state  of  ^lassachusetts,  whose 
laws  govern  my  personal  succession.  In  this  respect,  congress  has  no 
constitutional  power  whatever,  except  in  some  one  of  my  special  rela- 
tions to  the  federal  government,  as  in  the  imposition  of  taxes,  and  in 
the  other  few  and  limited  matters  of  federal  resort.  That  general 
immunity  from  federal  legislation  in  ordinary  matters  of  private  in- 

536 


OPINIONS  OF  ATTORNEYS  GENERAL 

terest  is  my  own  imprescriptible  right :  it  is  also  the  sovereign  right 
of  my  state.  In  like  manner,  it  is  the  right  of  my  heirs-at-law.  I  do 
not  lose  this  right,  nor  do  they,  by  my  temporarj"-  absence  from  my 
state  in  public  employment,  or  as  a  merchant,  or  traveller,  or  any 
other  way,  except  such  as  may  give  me  citizenship  or  local  domicile  in 
some  foreign  country,  and  thus  place  me  and  my  personal  rights,  and 
those  of  my  succession,  imder  the  jurisdiction  of  such  foreign  coun- 
try. These  positions  are  the  elementary  law  of  the  condition  of 
citizens  of  the  United  States. 

Furthermore,  it  is  the  all  but  universally  received  principle  of 
the  international  law  private,  that  the  real  estate  of  a  decendent  goes 
to  his  heirs-at-law,  and  that  his  personal  estate  is  to  be  distributed  ac- 
cording to  the  law  of  his  domicile.  (Story's  Conflict  of  Laws,  ch.  ix; 
Felix,  Droit  International  Prive,  p.  161,  Phillimore  on  Domicile  ch. 
i.)  This  rule  cannot  be  changed  by  an  act  of  congress;  for  its  con- 
tinued existence,  in  so  far  as  regards  our  own  citizens,  is  of  the  rights 
of  the  states. 

Now,  this  provision  of  the  act,  in  requiring  the  consul  to  settle 
the  estate  of  a  decedent  according  to  his  directions  "by  wiU  or  any 
other  writing,"  or  to  deliver  up  the  property  to  any  agent  or  trustee, 
whom  he  may  have  appointed  "by  will  or  any  other  writing,"  makes 
reservation  of  "the  laws  of  the  country,"  and  so,  perhaps,  by  impli- 
cation, admits  exception  of  the  laws  (273)  of  the  decedent's  domicile 
which,  in  pursuance  of  the  law  of  nations,  is  respected  by  every  coun- 
try in  Christendom. 

But,  after  all,  this  law  of  the  domicile  is  the  great  exception, 
which  an  act  of  congress  cannot  empower  consuls  to  disregard,  and 
which  they  will  disregard  at  their  proper  peril. 

When  the  present  act  requires  the  consul  to  deliver  up  the  es- 
tate of*  a  decedent,  dying  within  his  jurisdiction,  to  an  appointee 
under  his  "will,"  if  it  mean  his  executor,  that  the  consul  may  do; 
because  by  "wuU"  is  understood  a  valid  testament,  lawfully  made 
and  executed,  by  a  person  who  is  in  all  respects  compos  testandi: 
which  question  must  be  judged  by  the  law  of  the  decedent 's  state. 

But,  when  the  act  proceeds  to  say  that  the  consul  must  obey 
such  directions,  regarding  the  settlement  and  the  disposal  of  the 
decedent's  "personal  or  other  property,"  as  the  decedent  may  have 
given  him  by  "will  or  any  other  writing,"  and  deliver  it  over  to,  and 
protect  in  the  possession  of  it,  the  agent  whom  the  deceased  may  have 
appointed  "  by  \^all  or  any  other  writing,"  its  injunction  must  be 
understood  with  the  necessary  legal  reservations. 

Except  in  the  mere  temporary  settlement,  collection,  and  cus- 
tody of  the  property  of  a  decedent,  no  agent  appointed  by  will  or 

537 


Vol.  VII.  p.  242  (GUSHING) 

otherwise,  no  public  officer  empowered  by  act  of  congress,  can  safe- 
ly venture  to  deal  with  a  decedent 's  estate ;  for  either  that  estate  has 
been  disposed  of  by  lawful  testamentary  disposition  to  devisees  or 
legatees,  or  it  has  become  the  property  of  the  creditors  of  the  de- 
cedent, or  it  has  descended  upon  persons  legally  entitled  by  marriage 
or  kinship;  and,  in  either  case,  if  it  be  personal  property,  it  must  pass 
through  the  hands  of  a  duly  appointed  and  judicially  recognized 
executor  or  administrator.  If  we  could  suppose  that  the  act  intended 
to  go  beyond  this,  it  would  be  necessary  to  scrutinize  the  force  of  the 
expression, — "will  or  any  other  writing." 

"Any  other  writing"  signifies  some  writing,  which  has  not  the 
legal  effect  of  a  will,  or  it  means  nothing.  In  the  phrase  "will  or 
any  other  writing,"  the  "other"  excludes  a  will. 

VThether  the  alternative  in  this  provision  could  have  any  possible 
effect  on  the  estate  beyond  the  legalization  of  acts  of  (274)  tem- 
porary custody,  would  depend  upon  the  question  what  those  writings 
are.  other  than  a  will,  by  which  a  citizen  of  one  of  the  states  of 
this  Union,  who  may  happen  to  die  abroad,  can  impart  to  his  personal 
property,  after  his  decease,  a  direction  different  from  that  prescribed 
for  intestacy  by  the  law  of  his  state. 

What  is  that  writing,  not  possessed  of  the  legal  effect  of  a  will 
of  personal  assets  duly  executed  by  a  competent  person,  by  means  of 
which  a  citizen  of  New  York  or  of  Louisiana,  dying  in  Paris  during 
a  temporary  sojourn  there,  can  take  his  property  out  of  the  ordinary 
course  of  succession  ?  I  think  it  behooves  the  consul  to  consider  this 
question  well,  before  he  presumes  to  follow,  in  anything  beyond  the 
acts  of  custody,  settlement,  and  collection  prescribed  by  the  act  of 
April  14,  1792,  directions  of  the  decedent  by  writing  not  possessed  in 
law  of  the  force  of  a  testamentary  disposition,  or  directions  of  any 
agent  of  the  deceased,  however  nominated,  unless  that  agent  be  the 
duly  appointed  executor  or  administrator.  Otherwise,  the  consul 
may  be  called  to  account  by  some  creditor  of  the  deceased,  or  by  a 
lawfully  appointed  executor  of  his,  or  by  his  family  and  heirs-at-law. 

In  short,  the  consul  should  bear  constantly  in  mind  that  he  can- 
not as  consul  administer  on  the  estate,  nor  as  consul  aid  any  other 
person  in  so  administering,  without  judicial  authorization;  and  that 
the  whole  extent  of  his  consular  authority  is  to  guard  and  collect  the 
as.sets  of  a  decedent,  and  to  transmit  them  to  the  United  States,  or 
to  aid  others  in  so  guarding,  collecting,  and  transmitting  them,  to 
be  disposed  of  here  pursuant  to  the  law  of  the  decedent's  state. 

Finally,  it  may  be  proper  to  observe,  as  to  the  provision  of  the 
25th  section,  by  which  the  president  is  "authorized,"  if  he  see  fit, 
to  bestow  "the  title  of  consul   general"  upon   any   consul  of  the 

538 


OPINIONS  OF  ATTORNEYS  GENERAL 

United  States  in  Asia  or  Africa,  that  this  provision  is  of  doubtful 
tenor,  if  it  be  intended  to  imply  that,  without  it,  the  president  cannot, 
with  the  advice  of  the  senate,  at  any  time  appoint  a  public  officer 
of  the  class  of  consuls,  and  bearing  the  title  of  consul  general. 

In  illustration  of  this  remark,  we  have  the  fact  that,  in  the  civil 
and  diplomatic  appropriation  act  of  the  last  session  of  (275)  con- 
gress, there  is  an  appropriation  for  the  salary  of  a  consul  general  for 
the  British  provinces  in  North  America,  while  the  general  act  sup- 
poses that  consulates  of  this  rank  are  to  be  confined  to  Asia  and 
Africa,     (x  Stat,  at  Large,  p.  763.) 

In  truth,  the  office  of  consul  general  may  be  given,  as  a  mere 
titular  designation,  to  imply  rank;  but  it  more  properly  signifies  an 
office  with  special  functions,  well  defined  by  the  law  of  nations  and 
public  usage.  The  consul  general  superintends  and  directs,  ac- 
cording to  the  instructions,  general  or  special,  of  his  government, 
the  consuls  within  a  particular  jurisdiction  or  country.  (DeCussy, 
Reglements  Consulaires,  p.  70;  Moreuil,  Agents  Consulaires,  p.  18.) 

Such  an  officer  possesses  utility,  and  particular  application  in 
foreign  countries  of  extensive  but  definite  circumscription,  in  which 
there  is  no  proper  diplomatic  representative  of  the  government,  such 
as  the  several  great  European  colonies,  or  other  governments  of  that 
order,  in  Asia,  Africa,  and  America.  In  all  the  countries  of  Europe, 
and  in  such  of  those  of  America  and  Asia  as  enter  fully  into  our 
treaty  system,  we  have,  or  may  have,  a  minister,  of  whatever  title, 
who  is  of  course,  by  public  law,  superior  in  rank  to  consuls,  and  their 
medium  of  communication  with  the  government.  But,  in  the  foreign 
dependencies  of  European  powers,  many  of  which  are  in  themselves 
great  states,  with  all  the  mechanism  of  local  authority,  and  in  sundrj' 
cases  enjoying  semi-independence  under  the  administration  of  a  gov- 
ernor, a  captain  general,  or  a  pacha,  it  becomes  necessary  that  some 
consular  person  should  have  power  to  communicate  with  the  su- 
preme colonial  or  feudatory  chief,  in  behalf  of  his  collegues  and  his 
countrymen ;  and  on  the  consul  residing  at  the  seat  of  government  will 
naturally  devolve  the  functions,  if  not  the  title,  of  consul  general. 
(De  Clerq,  Guide  des  Consulats,  p.  28.) 

These  considerations  indicate  that  the  selection  and  appoint- 
ment of  a  consul  general,  even  more  emphatically  than  that  of  con- 
sul, must  belong  to  the  treaty-making  power  in  every  political  society, 
the  power  which  initates  in  foreign  relations,  and  which  our  constitu- 
tion has  intrusted  to  the  president  in  consultation  with  the  senate. 

(276)  Permit  me  to  add,  in  conclusion,  that  the  suggestions, 
which  official  duty  compels  me  to  make,  in  regard  to  so  many  of  the 
provisions  of  this  act,  of  careful  discrimination  between  what  is  man- 

539 


Vol.  VII,  p.  242  (GUSHING) 

datorj-  in  a  statute,  and  what  is  recommendatory  only,  are  made  with 
entire  general  deference  and  respect  for  the  legislative  will  of  con- 
gress. 

It  happens  continually,  that  phrases,  of  doubtful  apparent  signi- 
ficancy  in  the  relation  of  constitutional  powers,  are  found  in  the  acts 
of  congress.  It  would  not  be  convenient  to  establish,  as  a  rule,  that 
the  president  must  refuse  to  approve  all  such  acts,  however  useful  and 
just  on  the  whole  they  may  be.  It  is  more  convenient  to  follow  the 
customary  routine  of  the  government,  of  reducing  any  such  question- 
able phrase  to  its  true  constitutional  value  by  construction,  when 
the  law  comes  to  be  construed  and  administered.  Thus,  when  the 
statute  says,  that  every  collector  of  the  customs  shall  have  authority, 
with  approbation  of  the  secretary  of  the  treasury,  to  employ  inspeet- 
tors,  (act  of  February  4,  1815,  s.  5,)  it  must  be  construed  to  mean 
that  the  secretary  may  appoint  and  remove  such  inspectors;  because 
the  power,  here  thus  in  words  given  to  collectors,  can  by  the  consti- 
tution be  devolved  only  on  the  president  or  a  head  of  department. 
(Mr.  Legare's  opinion,  March  24,  1843,  vol.  ii,  p.  1577.) 

So  when,  by  the  late  convention  with  France,  or  any  other,  it 
is  said,  in  words,  that  officers  with  consular  functions  and  rights,  vice- 
consuls,  and  consular  agents,  may  be  appointed  by  the  consul,  it 
means  appointed  by  the  secretary  of  state  on  the  presentation  of  the 
consul,  and  removable  by  the  same  authority. 

By  affixing  his  signature  to  an  act  or  treaty  containing  such 
phrase,  the  president  does  not  effect  any  change  in  the  constitution. 
He  cannot  take  constitutional  power  in  virtue  of  any  clause  of  an 
act  of  congress;  nor  can  he  so  surrender  it.  The  constitutional  power 
of  each  of  the  three  great  departments  of  the  government,  respec- 
tively, belongs  to  the  offices,  not  the  officers,  and  cannot,  by  any  act 
or  words  of  theirs,  be  withdrawn  from  the  permanent  and  pervading 
authority  of  the  constitution. 

(277)  We  know  how  difficult  a  task  it  is,  in  remodelling  any 
groat  department  of  the  public  service,  to  give  apt  expression  to  all 
which  is  included  in  the  assumed  theory  of  the  act.  It  requires  much 
circumspection  and  reflection  to  adapt  successfully  the  new  parts  of 
the  system  to  the  old  ones ;  many  lacunae  will  remain  to  be  filled  up ; 
some  things  will  be  disturbed,  which  it  was  not  intended  to  touch; 
and  when  the  judge  or  the  administrator  comes  to  deal  with  the  act 
of  legislation  as  a  practical  matter,  and  to  review  all  its  provisions  in 
their  relation  to  one  another,  and  to  the  pre-existing  provisions  of 
law.  he  finds  himself  driven,  by  inexorable  force  of  logic,  into  conse- 
quences of  construction  not  anticipated  by  the  legislator.  These  un- 
forseen  consequences  increase  in  degree  or  number  in  proportion  as 

540 


OPINIONS  OF  ATTORNEYS  GENERAL 

the  legislative  body  indulges  in  the  prevailing  disposition  to  enter 
into  the  held  of  mere  administrative  regulations,  instead  of  devoting 
its  attention  to  the  superior  and  more  important  and  much  preter- 
mitted duty  of  prescribing  organic  rules  and  generic  principles  of 
administration.  These  final  reflections  it  seems  not  out  of  place  to 
submit,  on  your  account  as  well  as  my  own,  in  explanation  and  apol- 
ogy of  the  many  questions  of  construction,  which  have  arisen,  and 
could  not  fail  to  arise,  on  a  measure  of  so  much  magnitude  as  that  of 
remodelling  the  diplomatic  and  consular  systems  of  the  United 
States. 

Whatever  of  inevitable  imi)erfection  there  may  be,  in  this  initia- 
tory enactment  in  the  right  direction,  will,  of  course,  in  due  season, 
receive  the  attention  of  congress. 

I  have  the  honor  to  be,  very  respectfully, 

C.  GUSHING. 
Hon.  Wm.  L.  Marcy,  Secretary  of  State. 


Vol.  VII.  p.  342  (Gushing) 
FUNCTIONS  OF  CONSULS 

A  consul  may  be  authorized  to  communicate  directly  with  the  government 
near  which  he  resides;  but  he  does  not  thereby  acquire  the  diplomatic  privileges 
of  a  minister. 

Nor  does  he,  as  consul,  acquire  such  privileges  by  being  appointed,  as  he 
may,  at  the  same  time  charge  d'affaires. 

To  the  question  whether  a  consul  can  solemnize  marriage  or  not,  as  consul,  it 
is  wholly  immaterial  whether  he  be  or  not  a  subject  of  the  foreign  government. 

The  exterritoriality  of  foreign  consuls  in  Turkey  and  other  Mohammedan 
countries  is  entirely  independent  of  the  fact  of  diplomatic  representation,  and  is 
maintained  by  the  difference  of  law  and  religion;  being  but  incidental  to  the  fact 
of  the  established  exterritoriality  of  Christians  in  all  countries  not  Christian. 

Consuls,  as  international  commercial  agents,  originated  in  the  colonial 
municipalities  of  the  Latin  Christians  in  the  Levant,  which  municipalities  were 
self-governing  through  their  ' '  consuls, ' '  the  ancient  title  of  municipal  magis- 
trates in  Italy. 

Rights  of  private  exterritoriality  having  ceased  to  exist  in  Christendom,  for- 
eign consuls  have  ceased,  mostly,  to  be  municipal  magistrates  of  their  country- 
men there;  but  they  still  continue  not  only  international  agents,  but  also  admin- 
istrative and  judicial  functionaries  of  their  countrymen,  in  countries  outside  of 
Christendom. 

Attorney  General's  Office, 

July  14,  1855. 
Sir:     Your  communication  of  the  10th  instant  encloses  to  me  a 
despatch  from  Mr.  Ritter,  the  consul  of  the  United  States  at  Frank- 
fort OR  the  Mayn,  regarding  the  solenmizatiou  of  the  marriage  cere" 

541 


Vol.  VII,  p.  342  (GUSHING) 

mony  by  foreign  consuls,  which  despatch  was  induced  by  the  con- 
tents of  my  opinion  on  that  subject  of  the  4th  of  November. 

Mr.  Ritter  discusses  at  length,  and  with  much  intelligence,  the 
considerations,  which,  in  his  judgment,  render  it  desirable  that  con- 
suls in  Germany,  especially  at  the  points  of  collection  or  embarca- 
tion  of  emigrants,  should  possess  the  power  to  legalize  matrimony. 
There  is  force  in  what  he  says.  Nevertheless,  it  remains  indisputable 
that  consuls  do  not  in  fact  possess  the  power,  and  it  cannot  be  im- 
parted to  them  by  any  act  of  the  department  of  state. 

They  might  possibly  acquire  it  in  three  ways,  namely:  first, 
(343)  by  municipal  act  of  any  foreign  government  giving  legality  to  a 
marriage  within  it  so  celebrated,  in  which  case  there  would  be  nothing 
in  oiu"  law,  or  in  our  public  policy,  to  forbid  a  consul  ofificiating  in 
that  relation ;  secondly,  perhaps,  specially  by  treaty,  or  generally  by 
act  of  congress.  But  these  are  questions  of  political  expediency,  not 
of  positive  jurisprudence. 

Mr.  Ritter  suggests  that,  in  the  opinion  referred  to,  notice  was 
not  taken  of  "the  difference  between  consuls,  who  are  subjects  of  the 
state  where  they  reside,  and  those  who  are  not  such  subjects." 

Undoubtedly  such  difference  exists,  since  a  subject  cannot  es- 
cape his  local  obligations  by  means  of  an  appointment  as  foreign 
consul;  but  that  is  immaterial  to  the  question;  because  the  consul 
does  not,  by  reason  of  his  being  a  foreigner,  become  therefore  auth- 
orized to  solemnize  marriage.  If,  indeed,  being  a  subject  of  the 
state,  he  have  power  as  a  local  magistrate  to  solemnize  marriage,  or, 
being  a  foreigner,  he  have  the  same  power  as  clergyman,  he  m<ay  do  it; 
but,  in  either  case,  not  in  his  capacity  of  consul. 

^Ir.  Ritter  suggests  another  point  of  consideration,  namely,  "the 
difference  between  consuls  residing  in  a  state  where  there  is  a  minister 
representing  the  government  by  whom  they  were  appointed,  and  con- 
suls residing  in  a  state  where  there  is  no  minister,"  and  he  indicates 
the  peculiar  importance  of  this  point  in  Germany. 

It  is  true,  that,  in  a  country  where  his  government  has  no  minis- 
ter, tho  dntirs  of  the  consul  expand  of  necessity  into  a  larger  field,  be- 
cause he  will  be  called  upon  to  communicate  with  his  own  government, 
or  with  that  near  which  he  resides,  in  matters  which  would  otherwise 
devolve  on  a  minister;  but  that  circumstance  does  not  cure  his  legal 
incapacity  as  consul  to  solemnize  marriage  without  authority  of  the 
local  government. 

The  United  States  may,  with  consent  of  the  other  party, 
superadd  to  the  regular  duties  of  consul  any  of  those  of  minister. 

There  are  two  great  classes  of  cases  in  which  this  fact  exists,  and 

542 


OPINIONS  OF  ATTORNEYS  GENERAL 

might  well  be  systematized,  or  at  least  more  explicitly  recognized  in 
our  consular  stipulations  with  foreign  governments. 

(344)  One  is,  that  of  the  transmarine  possessions  of  sundry  of 
the  states  of  Europe.  Here,  as  incidentally  intimated  in  my  opinion 
of  the  2d  ult.,  on  the  subject  of  the  consular  establishments  of  the 
United  States,  many  cogent  reasons  dictate  that  we  should  insist  on 
the  concession  to  our  consuls,  by  such  states,  of  the  right  to  address 
the  colonial  or  provincial  governor.  There  is  nothing  in  the  law  of 
nations  to  prevent  this.  It  is  informally  admitted  in  many  colonial 
governments.  It  is  convenient  for  all  parties.  It  is  a  consular  right 
exercised  by  treaty  in  the  great  pashalics  of  the  Turkish  Empire. 

We  have  recently  made  provision  to  the  same  effect  in  treaty 
with  a  Christian  power,  namely,  the  Netherlands.  And,  this  govern- 
ment having  thus  wisely  relinquished  its  long-standing  scruples  on 
this  point,  we  may  reasonably  expect  similar  liberality  in  future 
commercial  negotiations  with  Great  Britain  and  with  Spain.  In 
fact,  the  consul  general  of  Great  Britain  now  possesses,  by  conven- 
tion, the  power  in  Cuba.  (Riquelona,  Derecho  Intemacional,  p. 
523.) 

The  other  class  of  cases  of  this  nature  is  that  of  a  consul  resid- 
ing near  a  metropolitan  government  where  there  is  no  minister, 
either  because  of  temporary  cessation,  or  because  inducements  have 
not  existed  for  the  interchange  of  diplomatic  representatives  between 
such  government  and  the  United  States.  In  this  case  it  becomes 
the  office,  perhaps  it  may  be  said  the  right,  of  the  consul,  to  place 
himself  in  direct  communication  with  the  political  authority  of  such 
government.  Here,  as  in  the  other  case,  the  fact  occurs,  and  is  of 
common  convenience;  it  is  not  inconsistent  with  the  public  law;  and, 
so  far  as  regards  the  United  States,  it  has  example  in  treaties,  for  in- 
stance, in  our  last  consular  convention  with  France. 

It  is  a  thing  of  manifest  necessity,  as  between  us  and  those  of 
the  coimtries  of  Germany,  with  which  our  relations  are  entirely 
amicable,  without  calling  for  permanent  diplomatic  representation. 
The  German  Bund,  though  in  some  features  resembling  our  own 
Federal  Republic,  yet  differs  essentially  in  this,  that,  in  the  former, 
the  federal  authoritj',  in  matters  of  peace  and  war,  acts  upon  states, 
not  individuals,  and  of  course  each  state  retains  the  power  of  foreign 
representation  and  (345)  negotiation.  Hence,  if  we  do  not  see  cause 
to  interchange  ministers,  we  may  yet  well  reciprocally  enlarge  the 
consular  functions,  in  our  relations  with  such  states  as  Bavaria,  Sax- 
ony, Wurtemburg,  Hanover,  the  Hessen,  the  Mecklenbergs,  or  any 
other  of  the  members  of  the  Bund. 

Meanwhile,  it  woul^  not  in  either  of  these  classes  of  cases  fol- 

543 


Vol.  VII,  p.  342  (GUSHING) 

low.  that  because  a  consul  of  the  United  States  in  Bavaria,  or  one  of 
Bavaria  in  the  United  States,  may  be  admitted  to  address  the  gov- 
ernment, that  therefore  he  becomes  a  diplomatic  personage,  with 
international  rights  as  such,  and  among  them  that  of  exterritoriality. 
If  his  commission  be  that  of  consul  only,  if  his  public  recognition  be 
an  exequatur,  the  foreign  consul  is  subject  to  the  local  law  in  the 
United  States;  and  our  own  consul  in  the  foreign  country,  if  in- 
vested in  any  case  with  quasi  exterritorial  rights,  does  not  derive 
these  from  the  law  of  nations,  but  only  from  the  special  concession, 
by  general  law  or  otherwise,  of  the  particular  foreign  government. 

If,  indeed,  the  United  States  see  fit  in  any  case  to  confer  the  func- 
tion of  charge  d'affaires  on  their  consul  either  with  or  without  limita- 
tion of  time,  as  they  may  lawfully  do,  that  is,  to  superimpose  the 
office  of  minister  on  that  of  consul,  then  he  has  a  double  political  ca- 
pacity, and  though  invested  with  full  diplomatic  privileges,  yet  be- 
comes so  invested  as  charge  d'affaires,  not  as  consul;  and  the  fact 
of  such  casual  duplication  of  functions  does  not  change  the  legal 
status  of  consuls,  wiiether  they  be  regarded  through  the  eye  of  the 
law  of  nations,  or  that  of  the  United  States. 

Mr.  Ritter  observes: 

"In  Egypt,  Tunis,  Tripoli,  China,  The  Islands  of  the  Pacific, 
consuls  enjoy  all  the  diplomatic  privileges.  The  motive  is  not  only 
in  the  difference  of  law  and  religion  with  ours,  but  also  in  the  ab- 
sence of  other  diplomatic  representatives." 

This  observation  involves  a  double  error.  In  the  case  of  China 
and  Turkey,  for  instance,  our  consuls  have  not,  qua  consuls,  any 
"diplomatic  privileges"  except  such  as  they  might  have  in  France, 
during  the  ab.sence  of  a  minister;  such  exterritorial,  not  diplomatic, 
privileges,  as  they  really  enjoy,  they  enjoy,  not  because  they  are  con- 
suls, nor  because  of  the  absence  (346)  of  proper  diplomatic  represen- 
tatives in  those  countries,  for  we  have  them, — but  because  they  are 
citizens  of  the  United  States.  And  the  true  explanation  of  the  diplo- 
matic rights  appertaining  to  consuls  in  the  Mohammedan  states, 
whether  independent  ones,  like  Morocco  and  Muscat,  or  subject  to  the 
suzerainty  of  the  Porte,  like  Tripoli,  Tunis,  and  Egypt,  and  so  of  the 
Pacific  or  Indian  Islands,  is  that  these  states  are  not  Christian,  are 
not  admitted  to  a  full  community  of  international  law,  public  or 
private,  with  the  nations  of  Christendom. 

I  might  demonstrate  historically  what,  in  this  place,  it  will 
suffice  to  affirm,  that  the  institution  of  consuls,  in  their  present  capac- 
ity of  international  agents,  originated  in  the  mere  fact  of  differences 
in  law  and  religion,  at  that  period  of  modem  Europe  in  which  it 
was  customary  for  distinct  nationalities,  co-existing  under  the  same 

544 


OPINIONS  OF  ATTORNEYS  GENERAL 

general  political  head,  and  even  in  the  same  city,  to  maintain  each 
a  distinct  municipal  government. 

Such  mimicipal  colonies,  organized  by  the  Latin  Christians,  and 
specially  by  those  of  the  Italian  Republics,  in  the  Levant,  were  ad- 
ministered, each  by  its  consuls,  that  is,  its  proper  municipal  magis- 
trates, of  the  well-known  municipal  denomination.  Their  commer- 
cial relation  to  the  business  of  their  countrymen  was  a  mere  inci- 
dent of  their  general  municipal  authority.  Such  also,  at  the  out- 
set, was  the  nature  of  their  political  relation  to  other  co-existing  na- 
tionalties  around  them  in  the  same  country,  and  to  that  country's 
own  supreme  political  or  military  powers. 

The  consuls  of  Christian  states,  in  the  countries  not  Christian, 
still  retain  unimpaired  and  habitually  exercise  their  primitive  func- 
tion of  municipal  magistrates  for  their  countrymen,  their  commercial 
or  international  capacity  in  those  countries  being  but  a  part  of  their 
general  capacity  as  the  delegated  administrative  and  judicial  agents 
of  their  nation. 

This  condition  of  things  came  to  be  permanent  in  the  Levant, 
that  is,  in  Greek  Europe  and  its  dependencies,  by  reason  of  the  tide 
of  Arabic  and  Tartar  conquest  having  overwhelmed  so  large  a  part  of 
the  Eastern  Empire,  and  established  the  Mohammedan  religion  there. 
But  the  result  was  different  in  Latin  Europe,  because  the  modern 
nations,  formed  in  this  quarter  (347)  out  of  the  broken  fragments 
of  the  Western  Empire,  being  Christian,  and  thus  deriving  their  re- 
ligion and  their  civilization  from:  the  same  fountain-head  of  Rome, 
settled  into  something  of  approximation  to  the  one  great  political 
community,  under  the  influence,  potential  when  combined,  of  the 
military  power  of  the  Frankish  or  Germanic  Emperors,  and  the 
moral  power  of  the  Papal  See.  Thus  it  was  that  the  mass  of  legal 
ideas,  which  we  now  call  the  law  of  nations,  came  to  exist,  and  have 
authority.  It  is,  in  its  origin  at  least,  the  system  of  public  law  of 
Latin  or  Western  Europe. 

The  approximative  political  unity  of  Western  Europe  was  ob- 
structed, at  first,  by  the  antagonism  of  the  Celto-Romanic  and  the 
Germanic  races,  and  was  threatened  with  complete  dissolution  when 
that  original  antagonism  reappeared  in  the  separation  of  some  of  the 
Germanic  populations  from  the  Papal  See,  under  the  popularly  as- 
sumed religious  title  of  Protestants.  But,  after  thirty  continuous 
years  of  reciprocal  devastation  and  slaughter,  the  states  of  the  old 
and  the  new  faith  concluded  a  truce  at  least,  if  not  a  peace,  and 
agreed,  while  acquiescing  in  the  fact  of  religious  difference,  to  main- 
tain approximate  unity  of  public  law,  and  thus  by  subordinating  the 
religious  idea  to  the  legal  one,  to  live  together  in  some  sort,  as  they 

545 


Vol.  VII,  p.  342  (GUSHING) 

have  continued  to  do.  with  only  occasional  spasms  of  fanatical  intol- 
erance breaking  ont  into  civil  or  foreign  war.  At  a  late  period,  Rus- 
sia, though  of  Greek  faith,  came  into  the  European  system  of  public 
law,  with  the  less  difficulty  indeed,  for  the  reason  that  Latin  Europe 
and  Greek  Europe  alike  nourished  the  legal  traditions  of  the  Roman 
Empire  though  these  be  derived  in  the  former  case  from  Rome,  and 
in  the  latter  from  Constantinople,  it  being  doubtful  which  became 
the  most  barbarized  in  the  dark  ages,  Eastern  or  Western  Christen- 
dom,— in  which  the  modern  civilization  first  became  consolidated, — 
and  which  the  most  frankly  accepts  at  this  day  a  tolerant  legalism  as 
the  balance  of  intolerant  religionism. 

However  this  may  be,  certain  it  is  that  by  the  combination  of 
Romanic  law  and  Christian  faith  it  is  that  we  have  come  to  have  a 
common  public  law,  under  whose  gradual  operation  claims  of  private 
exterritoriality  soon  fell  into  desuetude  among  (348)  the  govern- 
ments of  Christendom ;  Italians  in  England  and  Englishmen  in  Italy, 
at  length  submitted  to  the  local  law;  foreign  colonial  nationalities 
finally  ceased  to  exist  of  right;  their  consuls  proceeded  to  sink  from 
the  condition  of  municipal  fmictionaries  into  that  of  mere  commer- 
cial or  semi-diplomatic  one;  and  thus  in  process  of  time,  by  tradi- 
tional usage,  by  positive  provisions  of  local  law,  and  by  treaty  stipu- 
lations, the  existing  legal  character  with  its  limited  rights,  was  fixed 
on  the  foreign  consuls  mutually  accredited  in  the  countries  of  Christ- 
Europe  and  America. 

In  our  relations  with  nations  out  of  the  pale  of  Christendom, 
we  mu.st  and  shall  retain  for  our  own  citizens  and  consuls,  though  we 
cannot  concede  to  theirs,  the  right  of  exterritoriality. 

There  is  one  European  country,  and,  so  far  as  my  observation 
goes,  but  one,  where  the  exterritoriality,  claimed  by  Christians  in 
all  Mohammedan  governments,  is  reciprocated  by  the  Christians. 
Spain  has  conceded  to  the  subjects  of  Turkey,  Morocco,  and  Tripoli, 
the  same  immunity  which  these  last  have  conceded  to  Spaniards,  that 
is,  the  privilege  of  being  subject,  each  in  the  country  of  the  other, 
only  to  the  authority  of  their  own  consuls.  (Riquelona,  Derecho  In- 
temacional,  torn,  i,  p.  303.) 

Religion  is  the  chief  representative  sign  here;  and  it  is  an  ele- 
ment of  the  question  of  public  law;  because,  while  the  different  de- 
nominations of  Christianity  may  continue  to  sustain,  as  among  them- 
selves, a  certain  degree  of  imperfect  mutual  endurance,  yet,  so  fierce 
is  religious  prejudice  on  every  side,  that  there  is  no  apparent  possi- 
bility of  a  half-peace  even,  as  between  them  and  other  religions, 
more  especially  the  ^Mohammedan.     If  the  former  could  tolerate  the 

546 


OPINIONS  OF  ATTORNEYS  GENERAL 

latter,  the  latter  could  not  the  former,  except  in  conditions  of  military- 
subjugation  as  in  English  India. 

But  the  critical  fact  is  the  difference  of  law.  The  legislation  of 
Mohammed,  for  instance,  like  that  of  Moses,  is  inseparable  from  his 
religion.  We  cannot  submit  to  one  without  also  undergoing  the  other. 
The  same  legal  incompatibility  exists,  for  one  reason  or  another,  be- 
tween us  and  the  unchristian  states  not  Mohammedan. 

Whereas,  Christendom,  on  the  other  hand,  in  all  its  subdi-(349) 
visions  of  race,  nationality,  and  religion,  is  the  common  heir  of  the 
political  ideas,  and  especially  the  legislation,  of  the  Roman  Empire; 
for  the  Institutes  and  Pandects  themselves,  though  comprising  the 
sum  of  the  legal  science  of  Rome,  were  compiled  and  promulgated 
at  Constantinople,  and  constitute  the  broad  foundation  of  the  juris- 
prudence, public  and  private,  of  the  whole  of  Christendom. 

When  the  countries  now  Mohammedan  shall  be  subjugated  to 
the  doctrines  of  the  Roman  law, — whether  by  the  arms  of  Eastern  or 
the  arts  of  Western  Europe,  is  of  secondary  moment  to  us,  provided 
it  be  done, — and  not  until  then,  they  can  be  admitted  to  the  same 
reciprocal  community  of  private  rights  with  us,  which  prevails  in 
Christian  Europe,  and  in  America.  Until  that  event  happens,  Tur- 
key, and  other  Moslem  states  in  Africa  or  Asia,  may,  like  China  and 
Japan,  enter  into  the  sphere  of  our  public  law  in  the  relation  of  gov- 
ernment to  government,  but  not  in  the  relation  of  government  to 
men.  That  full  interchange  of  international  right  is  admissible  only 
among  the  nations  which  have  imity  of  legal  thought,  in  being  gov- 
erned by,  or  constituted  out  of,  the  once  dissevered,  but  since  then, 
partially  reunited,  constituents  of  the  Graeco-Roman  Empire. 
I  have  the  honor  to  be,  very  respectfully, 

C.  GUSHING. 
Eon.  Wm.  L.  Marcy,  Secretary  of  State. 


Yol.  VII,  p.  349  (Gushing) 

DISCHAEGE  OF  SEAMEN 

Masters  of  American  vessels  cannot  lawfully  discharge  seamen  in  foreign 
ports  without  intervention  of  the  consul. 

It  does  not  help  the  matter  to  allege  that  the  seamen  consent,  or  have  mis- 
eonducted  themselves,  or  are  not  Americans:  of  all  that  it  is  for  the  consul  to 
judge. 

Attorney  General's  Office, 

July  17,  1855. 
Sir:  Your  communication  of  the  10th  instant  transmits  to  me 
correspondence  between  Edward  Gordon,  commander  of  the    (350) 

547 


Vol.  VII.  p.  349  (GUSHING) 

schooner  Humboldt,  employed  on  the  survey  of  the  coast  of  the  United 
States,  and  the  consul  of  the  United  States  at  Rio,  respecting  the  dis- 
charge, by  ^Ir.  Gordon,  of  certain  seamen  at  that  place,  for  the  pur- 
pose of  having  proper  instruction  on  the  subject  addressed  by  me  to 
the  district  attorney  of  the  United  States  of  the  Northern  District  of 
California. 

It  appears  that  Mr.  Gordon  discharged  the  mate  and  two  seamen 
of  the  Humboldt,  at  Rio.  by  his  own  mere  authority,  and  without  the 
intervention  of  the  consul  of  the  Ignited  States.  Having  done  it, 
he  gave  the  consul  notice  of  the  fact,  saying  that  the  mate  was  dis- 
charged for  drunkenness,  and  the  two  seamen  with  their  own  consent, 
they  not  being  Americans.  In  all  this  "Sir.  Gordon  acted  inconsid- 
erately and  unlawfully.  He  had  no  right  to  determine  of  himself 
the  facts  on  which  he  assumed  to  act,  nor  to  consummate  the  discharge 
without  intervention  of  the  consul. 

As  Mr.  Gordon  is  employed  by  authority  of  the  treasury  depart- 
ment, and  as  much  of  the  evidence  in  the  case  will  be  found  there,  it 
seems  to  be  most  convenient  to  commit  the  whole  case  to  the  secre- 
tary of  the  treasury.  I  have  accordingly  transmitted  the  papers  to 
that  department. 

I  am,  very  respectfully, 

C.  GUSHING. 
Ho7i.  Wm.  L.  Marcy,  Secretary  of  State. 


Vol.  VII,  p.  367  (Gushing) 
FOEEIGN  ENLISTMENTS  IN  THE  UNITED  STATES 

Attorney  General's  Office, 
August  9,  1855. 

Sir:  (Extract)  (379)  Beyond  all  this,  it  would  seem  that  the 
legal  advisers  of  the  British  government  conceive  that  the  official 
agents  of  one  nation  may  rightfully  do,  within  the  territory  of  an- 
other, anything  which  is  not  by  the  domestic  statutes  of  the  latter 
declared  to  be  a  municipal  offence,  indictable  as  such  before  the 
courts  of  law.  If  such  an  idea  be  entertained  by  the  British  govern- 
ment or  its  law-officers,  certainly  it  is  a  mere  delusion,  possible  to  exist 
only  in  minds  shut  up  in  the  narrow  sphere  of  the  technical  common 
law  of  England. 

How  insular  that  law  is, — and  how  defective  the  knowledge  it 
imparts  even  for  the  purpose  of  domestic,  and  still  more  of  foreign, 
administration, — the  jurists  of  England  themselves  have  too  fre- 
quently had  cause  to  observe.  (See  ex.  gr.  Phillimore's  Internat. 
Law,  pref.  p.  xi;  Chitty's  Practice,  pref.  p.  v.  note.) 

548 


OPINIONS  OF  ATTORNEYS  GENERAL 

Nothing  can  be  plainer  than  the  position  that  the  objects  of  the 
municipal  law  in  such  a  case  are  domestic  only.  In  con-(380)stitu- 
tional  governments,  it  confers  on  the  executive,  in  the  particular  mat- 
ter, powers  which  he  would  not  otherwise  possess ;  and  it  provides  the 
means  of  repressing  all  acts  of  individual  persons,  whether  foreign 
agents  or  not,  which  may  contravene  the  policy,  or  infringe  the  rights, 
of  the  country.  But  the  municipal  law  cannot  reach  the  foreign 
sovereignty,  by  whose  orders  the  individuals  in  question,  if  public 
agents,  act  in  violation  of  the  local  sovereignty.  Yet  is  not  the  for- 
eign sovereign,  as  sovereign,  the  chief  wrong-doer?  And  is  the  wrong 
to  be  redressed  in  no  way  except  by  punishing  the  subordinate  agents 
of  the  ^vrong,  if  there  happen  to  be  any  municipal  law  to  reach  the 
case?  And  if  there  be  no  such  law,  is  the  injury  to  go  unredressed? 
Clearly  not :  for  governments  in  their  international  acts  are  directly 
responsible  to  governmjents. 

But  the  radical  absurdity  is  in  assuming  that  a  foreign  govern- 
ment may  lawfully  do  on  the  territory  of  another  government,  or 
cause  to  be  done,  anything  whatever,  which  is  not  made  penal  by 
local  statutes.  This  assumption  is  altogether  groundless.  The  law 
of  nations  is  international,  not  domestic  or  municipal:  it  is  the  en- 
semble of  international  conventions,  usages,  and  received  opinions, 
aided,  in  case  of  need,  by  the  doctrines  of  abstract  justice  and  of  uni- 
versal reason.  It  is  not  restricted  to  the  bounds  of  acts  of  parliament 
or  acts  of  congress.  International  right  would  be  reduced  to  a  sin- 
gular condition  indeed,  if  it  consisted  of  those  things,  and  those  things 
only,  which,  for  consideration  of  internal  convenience.  Great  Britain 
or  the  United  States  may  have  happened  to  enact  as  law  by  means 
of  their  legislative  assemblies.  It  is  not  so,  either  affirmatively  or 
negatively.  Things  are  affirmed  in  their  statutes  which  are  not  ac- 
cording to  the  law  of  nations;  and  there  are  many  points  of  inter- 
national law  which  have  not  been  affirmed  by  their  statutes. 

A  single  pertinent  illustration  of  the  latter  will  suffice. 

There  are  two  matters  of  sovereign  right,  which  are  alike  in  char- 
acter, and  are  naturally  associated  in  the  writings  of  international 
jurists, — namely,  the  right  to  prevent  either  the  transit  (381)  of  for- 
eign troops,  or  the  enlistment  of  soldiers  for  foreign  service.  In 
Great  Britain  and  the  United  States  we  have  municipal  laws  to  re- 
press and  to  punish  the  individual  agents,  official  or  imofficial,  of  the 
latter  invasion  of  our  sovereign  rights ;  but  none  to  punish,  or  even  to 
repress,  the  former.  May  it  therefore  be  done  with  impunity  ?  Nay, 
can  it  be  done  \\nthout  national  offence?  It  may,  according  to  the 
premises  assumed  in  the  other  case.  If  all  acts  of  foreign  enlistment 
may  be  rightfully  done,  provided  there  be  no  prohibitory  statute, 

549 


Vol.  VIL  p.  367  ( GUSHING) 

and  if  there  be  any,  then  all  such  as  the  statute  does  not  reach, — of 
course  all  acts  of  foreign  military  transit  may  be  rightfully  per- 
formed, and  there  is  the  end  of  the  sovereignty  of  every  nation,  which 
does  not  happen,  like  Great  Britain,  to  be  surrounded  by  water. 

In  truth,  the  statute  in  all  these  matters  is  of  but  secondary  ac- 
coimt.  The  main  consideration  is  the  sovereign  right  of  the  United 
States  to  exercise  complete  and  exclusive  jurisdiction  within  their  own 
territory ;  to  remain  strictly  neutral,  if  they  please,  in  the  face  of  the 
warring  nations  of  Europe ;  and  of  course  not  to  tolerate  enlistments 
in  the  coimtry  by  either  of  belligerents,  whether  for  land  or  sea 
service.  If  there  be  local  statutes  to  punish  the  agents  or  parties  to 
such  enlistments,  it  is  well;  but  that  is  a  domestic  question  for  our 
consideration,  and  does  not  regard  any  foreign  government.  All 
which  it  concerns  a  foreign  government  to  know  is,  whether  we,  as  a 
government,  permit  such  enlistments.  It  is  bound  to  ask  permission 
of  us  before  coming  into  our  territory  to  raise  troops  for  its  own  ser- 
vice. It  has  no  business  to  inquire  whether  there  be  statutes  on  the 
subject  or  not.  Least  of  all  has  it  the  right  to  take  notice  of  the 
statutes  only  to  see  how  it  may  devise  means  by  which  to  evade  them. 
Instead  of  this,  it  is  bound,  not  only  by  every  consideration  of  in- 
ternational comity,  but  of  the  strictest  international  law,  to  respect 
the  sovereignty  and  regard  the  public  policy  of  the  United  States. 

Accordingly,  when,  at  the  commencement  of  the  great  European 
struggle  between  England  and  France,  near  the  close  of  the  last  cen- 
tury, the  French  Convention  assumed  to  recruit  (382)  marine  forces 
in  the  United  States,  it  was  held  by  President  "Washington,  and  by 
his  Secretary'  of  State,  ]Mr.  Jefferson,  as  explained  in  the  correspond- 
ence hereinbefore  quoted,  that  by  the  law  of  nations,  in  virtue  of  our 
sovereignty,  and  without  stopping  to  enact  mimicipal  laws  on  the  sub- 
ject, we  had  full  right  to  repress  and  repel  foreign  enlistments,  and 
e  converso,  that  the  attempt  to  make  any  such  enlistments  was  an  act 
of  gross  national  aggression  on  the  United  States. 

"When  a  foreign  govenment,  by  its  agents,  enters  into  the  United 
States  to  perform  acts  in  violation  of  our  sovereignty,  and  contrary 
to  our  public  policy,  though  acts  not  made  penal  by  municipal  law, 
that  is  a  grave  national  indignity  and  wrong.  If,  in  addition  to  this, 
such  foreign  government,  knowing  that  penal  statutes  on  the  subject 
exist,  delibfrately  undertakes  to  evade  the  municipal  law,  and  thus  to 
baffle  and  bring  into  disrepute  the  internal  administration  of  the  coun- 
try, in  such  case  the  foreign  government  not  only  violates  but  in- 
sults our  national  sovereignty. 

I  repeat,  then,  that,  if  it  were  to  be  supposed  that  the  British 
government  had  so  far  forgotten  what  is  due  to  its  own  dignity,  as  to 

550 


OPINIONS  OF  ATTORNEYS  GENERAL 

instruct  its  agents  within  the  territories  of  the  German  Bund,  in  the 
Netherlands,  in  the  United  States,  to  enlist  recruits  without  respect 
for  local  sovereigny,  but  with  care  to  avoid  or  evade  the  letter  of  local 
statutes,  instead  of  diminishing,  that  would  aggravate  the  injustice 
and  illegality  of  the  proceeding  in  the  eye  of  the  law  of  nations,  and 
the  intensity  of  the  public  wrong  as  regards  the  neutral  states  thus 
converted,  without  their  consent,  into  a  recruiting  ground  for  the 
armies  of  Great  Britain. 

Such  instructions  would  be  derogatory  to  our  public  honor  in 
another  respect.  They  presume  that  the  United  States,  without  be- 
coming the  open  ally  of  Great  Britain,  will,  by  conniving  at  the  use 
of  their  territory  for  belligerent  purposes,  while  professing  neutrality, 
thus  carry  on,  as  already  intimated,  a  dishonorable  war  in  disguise 
against  Russia. 

It  appears,  however,  that  the  British  government,  finding  it  im- 
possible to  keep  the  ranks  of  its  army  filled  by  voluntary  enlistments, 
and  being  loth  to  encounter  the  responsibility  of  a  (383)  law  for  con- 
scription, for  draughts  on  militia,  for  periodical  service  of  its  able- 
bodied  men,  or  for  any  other  systematic  method  of  raising  troops  from 
its  own  population,  introduced  into  parliament  a  bill  entitled  "An  act 
to  permit  foreigners  to  be  enlisted,  and  to  serve  as  officers  and  sol- 
diers in  her  majesty's  forces,"  but  which  was  in  fact  a  bill  to  author- 
ize the  government  to  employ  agents  to  carry  on  recruiting  service  in 
the  neutral  states  of  Europe  and  America. 

The  law  was  earnestly  objected  to  in  its  progress,  as  insulting  to 
neutral  states  and  derogatory  to  the  national  dignity,  but  was  passed, 
nevertheless,  on  the  22d  of  December,  1854.  (Hansard's  Debates, 
third  series,  vol.  136,  passim.) 

At  an  early  day  after  the  passage  of  this  act,  measures  were 
taken  to  recruit  officers  and  men,  for  a  proposed  foreign  legion,  in 
the  United  States,  those  measures  being  publicly  pursued  under  the 
official  responsibility  of  Sir  Gaspard  le  Marchant,  lieutenant  governor 
of  the  province  of  Nova  Scotia.  A  military  depot  was  established  at 
Halifax  for  the  reception  and  enrollment  of  recruits;  and  Mr.  Howe, 
a  member  of  the  provincial  government,  with  other  agents,  came  into 
the  United  States  to  make  arrangements  for  engaging  and  forwarding 
the  recruits,  chiefly  from  Boston,  New  York,  and  Philadelphia.  Sub- 
sequently, corresponding  arrangements  were  made  for  collecting  and 
forwarding  recruits  from  the  western  states,  by  Buffalo  or  Niagara, 
through  upper  Canada. 

These  acts  were  commenced  and  prosecuted  with  printed  hand- 
bills and  other  means  of  advertisement,  and  recruits  were  collected 
in  depots  at  New  York  and  elsewhere,  and  regularly  transported  to 

551 


Vol.  VII.  p.  367  (GUSHING) 

Canada  or  Nova  Scotia,  with  undisguised  notoriety,  as  if  the  United 
States  were  still  a  constituent  part  of  the  British  Empire.  Of  course, 
they  attracted  great  attention,  and  the  various  measures,  whether 
legal  or  political,  proper  to  put  a  stop  to  them,  were  instituted  by  your 
direction,  through  the  instrumentality  of  the  foreign  or  legal  depart- 
ments of  the  government  of  the  United  States. 

In  the  course  of  the  investigations  which  ensued,  among  the  facts 
brought  to  light  are  some,  in  the  documents  referred  to  me,  which  un- 
equivocally implicate,  not  only  the  British  consuls,  (384)  but  the 
British  minister  himself,  in  the  unlawful  transactions  in  question,  and 
so  call  for  inquiry  as  to  the  rights  of  this  government  in  reference  to 
them  and  their  government. 

In  the  application  of  the  general  rules  of  law  to  the  offences  com- 
mitted, it  is  necessary  to  distinguish  between  the  case  of  any  of  the 
consuls  and  that  of  the  minister. 

The  several  district  attorneys  of  the  United  States,  within  whose 
jurisdiction,  respectively,  the  cases  occurred,  very  properly  assumed 
that  the  consuls  were  subject  to  indictment  for  infraction  of  the 
municipal  law,  and  have  proceeded  accordingly,  prosecutions  having 
already  been  instituted  in  the  Southern  District  of  Ohio,  against  the 
consul  at  Cincinnati,  and  in  the  Southern  District  of  New  York, 
against  an  officer  of  the  consulate  of  New  York. 

Nothing  is  better  settled  by  adjudication  in  this  country,  than 
that  foreign  consuls  are  subject  to  criminal  process  for  violation  of 
the  municipal  laws.  (United  States  v.  Ravara,  ii  Dall.  297.  Mannhart 
V.  Soderstrom,  i  Bin.  144;  Commonwealth  v.  Kosloff,  1  Serg.  &  R. 
545;  State  v.  De  la  Foret,  ii  Nott.  and  Mc.  217.) 

These  adjudications  are  in  exact  conformity  with  the  law  of  na- 
tions in  regard  to  consuls,  as  understood  and  practiced  not  less  in 
Great  Britain  than  in  other  states  of  Christendom.  (See  ante,  p. 
18;  also,  Kent's  Com.,  vol.  i,  p.  44;  Wheaton's  El.  by  Lawrence,  305.) 

The  only  privilege  which  a  consul  enjoys  in  this  respect,  in  the 
United  States,  is  that  awarded  to  him  by  the  constitution,  of  being 
tried  by  the  federal  courts:  the  effect  of  which  is,  that  his  case  re- 
mains within  the  control  of  the  general  government,  which  may  deal 
With  it  according  to  the  convenience  or  the  exigencies  of  its  foreign 
policy,  without  inipediment  from  the  authority  of  any  of  the  in- 
dividual states  of  the  Union.  (Const.  Art.  iii,  sec.  2;  act  of  September 
24,  1789,  sec.  9,  i  Stat,  at  Large,  p.  77.) 

The  consul  at  Cincinnati,  as  appears  by  the  legal  proceedings 
there,  supposes  that  he  is  entitled  to  the  benefits  of  certain  peculiar 
stipulations  in  the  consular  convention  between  the  United  States 

552 


OPINIONS  OF  ATTORNEYS  GENERAL 

and  France,  of  February  23,  1853.  If  it  were  so,  that  (385)  would 
not  serve  him  on  the  main  point,  because  it  does  not  exempt  consuls 
from  the  criminal  jurisdiction  of  either  of  the  contracting  govern- 
ments. But  this  convention  has  no  application  whatever  to  the  con- 
sular relations  of  Great  Britain  and  the  United  States.  Whether  it 
applies  or  not  to  governments  with  which  we  have  entered  into  stipu- 
lations to  place  our  respective  consuls  on  the  footing  of  the  most 
favored  nation,  is  a  question  as  yet  unsettled.  But  there  is  no  stipu- 
lation of  that  nature  in  existence,  as  between  Great  Britain  and  the 
United  States.  Of  course,  the  duties  and  the  rights  of  American 
consuls  in  Great  Britain,  and  of  British  consuls  in  the  United  States, 
stand  upon  the  law  of  nations,  except  as  the  same  is  modified  by  their 
treaties,  and  by  the  local  law  of  either  country.  The  local  law  of  each, 
as  we  have  seen,  withholds  from  consuls  the  diplomatic  privilege  of 
exterritoriality.  A  British  consul,  therefore,  has  no  just  cause  of 
complaint,  if,  when  charged  with  an  offence,  he  is  held  amenable 
to  the  criminal  jurisdiction  of  the  United  States. 

In  addition  to  those  ordinary  means  of  redress  in  the  case  of 
the  misconduct  of  a  foreign  consul,  is  that  afforded  by  the  law  of  na- 
tions. The  President  of  the  United  States  has  the  undoubted  power, 
in  his  discretion,  to  withdraw  the  exequatur  of  any  foreign  consul. 
To  justify  the  exercise  of  this  power,  he  does  not  need  the  fact  of  a 
technical  violation  of  a  law  judicially  proved.  He  may  exercise  it  for 
any  reasonable  cause,  whenever,  in  his  judgment,  it  is  called  for  by 
the  interests  or  the  honor  of  the  United  States.  (De  Clerq,  Guide 
des  Consulates,  p.  101.) 

On  each  of  these  points  provision  was  made  in  the  commercial 
convention  between  the  United  States  and  Great  Britain  of  July  3d, 
1815,  which  stipulates  that  "before  any  consul  (in  either  countrjO 
shall  act  as  such,  he  shall,  in  the  usual  form,  be  approved  and  ad- 
mitted by  the  government  to  which  he  is  sent ;  and,  *  *  in  case 
of  illegal  or  improper  conduct  towards  the  laws  of  the  government  of 
the  country  to  which  he  is  sent,  such  consul  may  either  be  punished 
according  to  law,  if  the  law  will  reach  the  case,  or  be  sent  back;  the 
(386)  offended  government  assigning  to  the  other  the  reasons  for 
the  same."     (Art.  iv.) 

This  convention,  by  its  terms,  was  to  subsist  only  four  years.  By 
a  sunbsequent  convention,  that  of  October  20th,  1818,  its  duration 
was  prorogued  ten  years,  (art.  iv;)  and  afterwards,  by  the  convention 
of  August  6th,  1827,  for  another  ten  years,  and  until  denounced  by 
either  party  on  twelve  months'  notice. 

For  the  rest,  the  stipulations  of  the  convention  of  1815,  as  con- 

553 


Vol.  Yll,  p.  367  (GUSHING) 

tinued  by  the  conventions  of  1818  and  1827,  are  but  declaratory  of  the 
law  of  nations,  as  that  is  understood  both  in  Great  Britain  and  the 
United  States. 

I  have  the  honor  to  be,  very  respectfully, 

C.  GUSHING. 
To  the  President. 


Vol.  VII,  p.  395  (Gushing) 

DEPOSIT  OF  SHIP'S  PAPERS 

Masters  of  American  vessels  are  subject  to  prosecution  in  the  name  of  the 
consul  for  omission  to  deposit  with  him  the  papers  according  to  law,  but  not  to 
indictment. 

Attorney  General's  Office, 

August  22,  1855. 

Sir:  I  have  received  your  communication  of  the  21st,  enclosing 
a  letter  of  ]\Ir.  Winthrop,  the  consul  of  the  United  States  at  Malta, 
and  requesting  me  to  give  proper  instruction  on  the  subject  to  the 
attorney  of  the  United  States  in  New  York. 

It  appears  that  two  American  shipmasters,  Gaptain  Borland,  of 
the  ship  "Gauntlet,"  and  Gaptain  Stetson,  of  the  ship  "Alleganian," 
refused,  on  entering  the  port  of  Malta,  to  deposit  their  registers  with 
the  consul. 

For  so  refusing,  they  are  subject  to  a  forfeiture  of  five  hundred 
dollars,  recoverable  by  the  consul,  in  his  owti  name,  but  for  the  ben- 
efit of  the  United  States,  in  any  court  of  competent  jurisdiction. 
(Act  of  Feb.  23,  1803,  s.  2;  ii  Stat,  at  Large,  p.  203.) 

Griminal  procedure,  imder  our  laws,  in  such  a  case,  applies  only 
to  the  masters  of  foreign  vessels  in  the  ports  of  the  United  States. 
(Act  of  March  3,  1817;  iii  Stat,  at  Large,  p.  362.) 

I  have  addressed  the  attorney  of  the  United  States  on  the  sub- 
ject. 

Meanwhile,  I  advise  that  ]\Ir.  Winthrop  be  instructed  to  report 
all  such  cases ;  and  in  regard  to  those  now  reported,  as  also  any  others 
of  the  same  description,  that,  to  prevent  technical  difficulties,  he  trans- 
mit express  authority  to  the  department  to  use  his  name  in  the  suits 
communicating  separate  authority  for  each  case.  It  may  be  well, 
moreover,  to  instruct  the  consul  to  see  that  proof  exists  in  each  case 
of  the  violation  of  the  law. 

I  am,  very  respectfully, 

C.  GUSHING. 
Wm.  Hunter,  Esq.,  Assistant  Secretary  of  State. 

554 


OPINIONS  OF  ATTORNEYS  GENERAL 

Vol.  VII,  p.  542  (Gushing) 

ASSETS  OF  AMERICANS  ABROAD 

The  face  of  a  banker's  circular  letter  of  credit,  found  in  the  posseBsion  of  an 
American  dying  abroad,  is  not  assets  to  that  amount  to  be  administered  by  the 
consul. 

Attorney  General's  Office, 

October  10th,  1855. 

Sir:  Your  letter  of  the  24th  ult.,  enclosing  correspondence  of  the 
consul  of  the  United  States  at  Paris,  and  of  Messrs.  J.  C.  Howe  and 
Co.,  of  Boston,  presents  this  question : 

Mr.  Alexander,  a  citizen  of  the  United  States,  bearing  a  circular 
letter  of  credit  from  the  Messrs.  Howe,  addressed  to  their  correspond- 
ents in  Europe,  dies  there.  Is  the  amount,  borne  on  the  face  of  such 
letter  of  credit,  assets  of  the  deceased,  on  which  the  consul  is  to  charge 
a  commission  for  remittance  to  the  United  States? 

Clearly  not,  in  my  opinion. 

An  American,  leaving  home  to  travel  in  Europe,  or  to  buy  mer- 
chandise there,  deposits  with  a  banker  at  home  cash,  or  securities  on 
his  personal  credit,  on  which  to  obtain  a  circular  letter  of  credit  on 
a  banker,  or,  as  often  happens,  a  series  of  bankers,  in  Europe.  The 
assets  of  the  party  remain  here,  they  are  not  transferred  there,  ex- 
cept so  far  as  he  draws  on  the  foreign  banker.  The  authority  to  draw 
on  the  foreign  banker  is  not  itself  assets,  nor  is  the  acceptance  of 
that  foreign  banker  assets.  The  whole  transaction,  when  fixed  by 
the  presentation  of  the  letter  of  credit  and  its  acceptance,  is  only  a 
promise  of  the  banker  to  advance  money  on  the  credit  of  the  drawer 
when  called  for  by  the  drawer,  to  a  certain  limited  amount.  It  is, 
in  fact,  a  promise  to  lend  to  A.  on  the  credit  of  B.  Such  a  promise 
cannot,  in  any  possible  point  of  view,  be  hona  noiabilia  of  A. 

(543)  Any  money  which  the  holder  of  the  circular  letter  of  credit 
may  have  drawn  out  upon  it,  and  then  deposited  with  the  foreign 
banker  subject  to  check,  will  be  legal  assets  of  the  deceased;  but  not 
so  either  the  original  face  of  the  letter,  or  the  balance  upon  it.  The 
letter,  instead  of  representing  property  of  the  deceased  in  the  hands 
of  the  banker,  or  a  debt  of  the  banker  to  the  deceased,  is  the  very 
contrary  of  this,  namely,  a  contingent  debt  of  the  deceased  for  the 
whole  face  of  the  letter,  and  an  actual  debt  of  his  in  so  far  as  it  has 
been  cashed. 

These  conclusions  are  general,  and  cover  the  whole  class  of  such 
letters, — whether  limited  in  amount,  or  unlimited,  as  they  may  be, 
ao4  sonjetimes  are,  and  whether  already  drawn  upon  wholly,  in  part, 

555 


Vol.  VII,  p.  542  (GUSHING) 

or  not  at  all,  and  whatever  may  be  their  object  or  conditions.    In  no 
possible  stage  or  form  of  the  transaction  are  they  bona  notahilia. 

Of  course,  in  the  particular  case,  that  of  the  travelling  letters  of 
credit  drawn  by  the  ^lessrs.  Howe,  in  favour  of  Mr.  Alexander, 
dying  in  Paris,  the  letters  are  not  subject  to  the  charge  of  commis- 
sion by  the  consul. 

I  have  the  honor  to  be,  very  respectfully, 

C.  GUSHING. 
Hon.  Wm.  L.  Marcy,  Secretary  of  State. 


Vol.  VII,  p.  722  (Gushing) 

DUTY  OF  SHIPMASTERS  RESPECTING  CRIMINAL  SEAMEN 

Shipmasters  in  foreign  ports  are  subject,  on  the  requisition  of  the  consul,  to 
take  on  board,  and  convey  to  the  United  States,  distressed  mariners;  but  not  sea- 
men or  other  persons  accused  of  crimes,  and  to  be  transported  to  the  United 
States  for  prosecution. 

Attorney  General's  Office, 

June  25,  1856. 

Sir :  The  documents  accompanying  your  letter  of  the  26th  ultimo 
exhibit  the  following  facts : 

Seneca  S.  Bishop,  a  seaman  of  the  American  ship  Corsica,  com- 
mitted a  mutinous  and  felonious  assault  on  board  the  same,  and  while 
she  was  on  the  high  seas :  an  act  punishable  of  course  in  the  United 
States.     (Act  of  April  30,  1790,  i  Stat,  at  Large,  p.  113.) 

The  Gorsica  afterwards  arrived  at  Calcutta ;  and  while  she  lay 
there,  Bishop  was  held  in  confinement  by  the  local  authorities  at 
Calcutta.  (See  U.  S.  Consular  Instructions,  No.  134.)  When  the 
ship  was  about  to  depart,  some  question  arose  as  to  the  disposition  to 
be  made  of  Bishop.  Tlie  British  authorities  decided  properly  that 
the  crime  was  to  be  deemed  as  committed  in  the  territorial  jurisdic- 
tion of  the  United  States,  and  (723)  as  one  of  which  the  courts  of 
the  United  States  had  cognizance,  and  therefore  not  within  the  cog- 
nizance of  the  courts  of  British  India.  The  same  authorities  also 
perceived  that  the  case  could  not  be  treated  precisely  on  the  footing 
of  international  extradition,  for  want  of  the  forms  of  demand  re- 
quired by  treaty  and  statute.  At  length,  however,  it  was  concluded 
to  deliver  the  accused  over  to  the  custody  of  the  American  consul, 
by  whom  he  was  repjlaced  on  board  the  Gorsica  for  conveyance  to  and 
trial  in  the  United  State.s. 

But  the  master  of  the  Gorsica,  who  had  in  the  first  instance 
agreed  to  take  charge  of  Bishop,  and  convey  him  to  the  United  States 
for  trial  and  punishment,  afterwards  repented  of  his  undertaking, 

556 


OPINIONS  OF  ATTORNEYS  GENERAL 

and  allowed  the  prisoner  to  escape  before  the  ship  had  left  the  waters 
of  India. 

And  the  case  is  now  represented  to  you  by  the  consul,  in  order 
that  due  steps  may  be  taken  to  punish  the  master  for  the  alleged 
release  of  Bishop. 

I  doubt  whether  there  is  any  provision  of  law  which  meets  the 
act.  Masters  of  American  ships  are  compelled  to  bring  home  desti- 
tute seamen,  but  that  provision  cannot  be  construed  in  my  opinion 
to  embrace  criminals  under  arrest.  I  am  not  aware  of  any  law,  which 
compulsorily  imposes  this  duty  on  merchant  ships  of  the  United 
States. 

That  the  two  things  are  distinct,  the  conveyance  of  distressed 
seamen  and  the  conveyance  of  criminals,  is  very  apparent.  It  is  ob- 
vious that  the  custody  of  a  criminal  requires  special  arrangements, 
for  which  the  trifling  compensation  allowed  in  the  case  of  distressed 
seamen  is  wholly  inadequate. 

Accordingly,  in  those  consular  codes  in  which  completeness  is 
aimed  at,  as  in  that  of  France,  there  is  distinct  provision  for  the 
two  cases;  and  the  consul,  on  requiring  the  transportation  of  a  crim- 
inal on  board  a  ship,  has  to  enter  into  express  contract  with  the  mas- 
ter, with  power  to  make  advances  to  cover  the  cost,  drawing  therefor 
on  his  government.  (De  Clercq  et  Vallat,  Guide  des  Consulats,  p. 
368;  De  Clercq,  Formulaire  des  Chancelleries,  tom.  ii,  p.  70.) 

I  cannot  advise,  therefore,  that  anything  further  be  done  in  the 
premises,  in  so  far  as  regards  the  master  of  the  Corsica.  I  (724)  beg 
leave  to  suggest,  however,  that  the  conduct  of  the  American  consul 
in  the  affair,  and  that  of  the  British  authorities  at  Calcutta,  are,  it 
seems  to  me,  entitled  to  the  particular  commendation  of  the  presi- 
dent. 

I  have  the  honor  to  be,  very  respectfully, 

C.  GUSHING. 
Hon.  Wm.  L.  Marcy,  Secretary  of  State. 


Vol.  VIII,  p.  73  (Gushing) 
AMERICAN  SHIPS  IN  FOREIGN  PORTS 

Ships  of  war  enjoy  the  full  rights  of  exterritoriality  in  foreign  ports  and  ter- 
ritorial waters. 

Merchant  ships  are  a  part  of  the  territory  of  their  country,  and  are  so  treated 
on  the  high  seas,  and  partially,  but  not  wholly  so,  while  in  the  territorial  waters 
of  a  foreign  country. 

Crimes  committed  on  board  ship  on  the  high  seas  are  triable  in  the  country  to 
which  she  belongs. 

In  port,  the  local  authority  has  jurisdiction  of  acts  committed  on  board  of  a 

557 


Vol.  VIII,  p.  73  (GUSHING) 

foreign  merchant  ship  while  in  port,  provided  those  acts  affect  the  peace  of  the 
port,  but  not  othenvige;  and  its  jurisdiction  does  not  extend  to  acts  internal  to 
the  ship  or  transpiring  on  the  high  seas. 

The  authority  of  the  ship  'a  country,  in  these  cases,  is  not  taken  away  by  the 
fact  that  the  actors  are  foreigners,  pro\*ided  they  be  of  the  crew  or  passengers  of 
the  ship. 

The  local  authority  has  right  to  enter  on  board  a  foreign  merchantman  in 
port  for  the  purpose  of  inquiry  universally, — but  for  the  purpose  of  arrest,  only 
in  matters  within  its  ascertained  jurisdiction. 

Attorney  General's  Office, 

September  6,  1856. 

Sir:  I  have  examined  the  correspondence  between  Mr.  Mason,  the 
envoy  of  the  United  States,  in  France,  and  the  president  of  the  coun- 
cil of  state  of  the  French  empire,  charged  par  interim  with  the  min- 
istry' of  foreign  affairs,  M.  Baroche,  as  communicated  to  me  by  your 
note  of  the  5th  inst-ant,  and  have  reflected  on  the  pertinent  questions 
of  public  law  which  you  suggest  for  my  consideration. 

Without  entering  into  recapitulation  of  all  the  facts  involved  in 
the  discussion,  it  will  suffice  for  the  present  purpose  to  state  such 
only  as  are  essential  to  the  right  understanding  of  the  points  now  re- 
maining to  be  determined. 

It  appears  that,  while  the  American  merchant-ship  Atalanta 
was  on  a  voyage  from  Marseilles  to  New  York,  and  on  the  high  seas, 
out  of  the  municipal  jurisdiction  of  any  government,  acts  of  insubor- 
dination and  violence  occurred  on  the  part  of  her  crew,  by  whom  the 
ship  was  forced  to  put  back  to  Marseilles. 

On  her  arrival  in  port,  the  criminal  parties  were,  on  the  applica- 
tion of  the  American  consul,  received  and  imprisoned  on  shore  by  the 
local  authorities. 

(74)  Afterwards  a  certain  number  of  them  were  released  abso- 
lutely with  assent  of  the  consul.  Thirteen  of  the  crew  thus  remained. 
Of  these,  a  portion,  six  in  number,  were,  on  the  application  of  the 
consul,  taken  from  the  prison  and  placed  on  board  the  Atalanta  for 
conveyance  to  the  United  States,  under  charge  of  crime.  Then,  with 
notice  to  the  consul,  it  is  true,  but  in  spite  of  his  remonstrances,  the 
local  authorities  went  on  board  the  Atalanta,  and  forcibly  resumed 
the  pos.session  of  the  six  prisoners,  and  replaced  them  in  confinement 
on  shore,  where  they  now  remain,  together  with  the  seven  others  not 
taken  on  board,  the  subject  of  the  pending  correspondence. 

It  does  not  distinctly  appear  of  what  nationality  these  men  are; 
but  it  is  implied  by  the  tenor  of  the  discussion  on  both  sides  that  they 
are  neither  citizens  of  the  United  States  nor  citizens  of  France. 

The  acts  of  criminality  with  which  they  stand  charged  consti- 
tute the  crime  of  revolt,  and  also  that  of  felonious  assault,  under 

558 


OPINIONS  OF  ATTORNEYS  GENERAL 

circumstances  which  bring  the  case  within  the  jurisdiction  of  the  ju- 
dicial authorities  of  the  United  States.     (Act  of  March  3,  1835.) 

To  the  same  effect,  imdoubtedly,  is  the  French  law,  which  as- 
sumes, as  ours  does,  that  the  ship  is  a  part  of  the  territory  of  her 
country,  and  provides  specially  for  the  punishment  of  crimes  com- 
mitted on  board.  (Ord.  de  1681,  liv.  11,  tit.  1,  art.  22;  Valin,  Com- 
ment., torn.  1,  p.  449;  Decret  du  24  Mars,  1852,  De  Clercq,  Formul. 
torn,  ii,  p.  348.) 

To  this,  it  is  wholly  immaterial  by  our  law  whether  they  were 
citizens  of  the  United  States  or  not.  (United  States  v.  Sharp,  i  Peters 
C.  C.  R.  p.  118,  121.) 

Nor  is  it  material  whether,  in  their  shipment  on  board  the  Ata- 
lanta,  the  master  did  or  not  infringe  the  navigation  laws  of  the 
United  States. 

The  practical  inquiries  are — 

1.  Whether,  in  view  of  the  stipulations  of  the  consular  conven- 
tion between  the  United  States  and  France  of  February  23,  1853, 
or  of  the  rules  of  international  law,  the  French  authorities  acted  right- 
fully in  going  on  board  the  Atalanta  to  retake  (75)  the  six  seamen 
placed  there  for  transmission  to  the  United  States. 

2.  Whether  the  American  government  may  now,  in  virtue  of 
treaty  or  of  the  law  of  nations,  rightfully  demand  the  extradition  of 
these  thirteen  men,  for  transmission  to  the  United  States,  there  to  be 
tried  in  due  course  of  law  for  their  imputed  crimes? 

It  is  due  to  the  Emperor's  government  to  say  that  the  questions 
made  in  the  case  are  manifestly  presented  by  it  in  good  will  and  in 
all  comity  as  regards  the  United  States;  and  may,  therefore,  be  dealt 
with  by  me  unreservedly  in  their  mere  legal  relations. 

1.  Of  the  rightfulness  of  the  retaking  of  the  men  from  on  board 
the  Atalanta. 

I  perfectly  agree  with  M.  Baroche,  that  it  was  not  the  object  of 
the  consular  convention,  to  confer  on  the  consuls  of  either  nation  the 
jurisdiction  of  crimes  in  the  ports  of  the  other. 

It  is  also  undeniably  true  that,  by  the  general  rules  of  public 
laws,  at  least  as  they  are  understood  and  received  in  the  United  States, 
we  do  not  claim  for  ourselves,  nor  concede  to  other  nations,  the  right 
of  exterritoriality  for  merchant-ships  in  the  territorial  waters. 

If,  in  concluding  this  convention,  the  two  governments  had  de- 
signed to  establish  as  between  themselves  a  new  rule  in  this  respect, 
they  would  have  said  so  expressly;  and  if  they  had  so  declared  ex- 
pressly, the  convention  would  not  have  been  confirmed  on  our  side, 
for  no  state  of  the  Union,  probably,  would  have  consented  thus  to 

559 


Vol.  VIII,  p.  73  (GUSHING) 

surrender  its  o"v\ti  municipal  jurisdiction  in  its  own  waters  to  the 
consuls  of  France. 

But,  in  treating  the  question  as  one  either  of  the  criminal  juris- 
diction of  consuls  or  of  the  exterritoriality  of  merchant-vessels  on  the 
territorial  waters,  do  we  not  assume  for  it  too  broad  a  scope  ? 

I  conceive  the  true  question  to  be  a  much  narrower  one.  It  is, 
whether,  when  a  crime  has  been  committed  on  the  high  seas,  on  board 
an  American  ship,  that  crime  being  of  the  sole  competency  of  the 
United  States,  and  the  ship  is  compelled  by  her  contract  of  destina- 
tion, by  stress  of  weather,  or  by  the  crime  (76)  itself,  to  touch  at  a 
French  port, — whether,  in  such  ease,  the  criminal  may  be  forcibly 
withdraA^-n  from  the  ship  by  the  local  authorities  or  by  the  order  ol 
the  government. 

This  question  presents  itself  here  in  three  different  forms : 

First,  the  French  authorities  take  the  temporary  custody  of  the 
parties  at  the  request  of  the  American  consul. 

Secondly,  the  French  authorities  redeliver  a  portion  of  the  pris- 
oners to  the  consul  to  be  held  on  board  the  Atalanta ;  and, 

Thirdly,  they  retake  the  latter  prisoners  from  on  board  the  Ata- 
lanta. 

In  my  opinion,  when  the  Atalanta  arrived  at  Marseilles,  the  mas- 
ter of  that  ship  had  lawful  power,  with  aid  of  the  consul  if  required, 
to  retain  these  men  on  board.  Though  not  citizens  of  the  United 
States,  they  were  American  seamen,  under  volimtary  contract  for  a 
voj-age  to  New  York,  whom  the  local  authorities  had  no  just  power 
to  discharge  from  their  contract.  The  consideration  that  they  had 
committed  crimes  on  board  the  ship,  but  not  within  the  local  juris- 
diction, for  which  crimes  they  were  liable  to  be  punished  on  her 
reaching  New  York,  did  not  give  to  the  local  authorities  any  just 
right  to  interfere.  If  crime  had  been  committed  while  the  ship  lay  in 
the  territorial  waters,  then  the  local  authorities,  and  they  alone, 
would  have  had  jurisdiction,  and  might  have  gone  on  board  to  seize 
the  prisoners  by  force.  But  not  when  no  act  had  been  done  by  them 
to  give  jurisdiction  of  the  case  to  France. 

I  transfer  the  question  to  the  United  States,  and  proceed  to  sup- 
pose that  a  French  merchant-ship,  on  her  way  to  Marseilles,  puts 
into  New  York,  in  distress,  having  at  the  time  mutinous  members  of 
her  crew  confined  on  board.  Could  such  persons,  in  such  a  case,  be 
lawfully  taken  away  from  the  custody  of  the  master  by  the  local 
authorities,  with  instrumentality  of  the  writ  of  habeas  corpus  or 
otherwise?    I  think  not. 

Now,  by  the  consular  convention,  and  by  the  law  of  nations  with- 
out it,  the  consul  represented  the  master,  and  his  country  alone,  in 

560 


OPINIONS  OF  ATTORNEYS  GENERAL 

matters  calling  for  the  intervention  of  the  authorities  of  Marseilles. 
This  representative  duty,  and  this  only,  the  consul  undertook  to  dis- 
charge in  the  present  case.  He  did  not  (77)  claim  or  assume  to  exer- 
cise any  power  judicial  or  other,  in  derogation  of  the  territorial  sov- 
ereignty. 

I  think  the  consul  acted  lawfully,  when,  at  the  first  stage  of  the 
transaction,  he  requested  the  local  authorities  to  take  temporary 
charge  of  these  prisoners. 

I  do  not  say  the  local  authorities  were  bound  to  assume  the  re- 
sponsibility of  such  custody ;  but  they  might  well  in  comity  do  it ;  nay, 
it  was  their  duty,  in  my  opinion,  at  the  call  of  the  consul,  at  least  to 
lend  him  their  aid  in  this  respect,  by  the  express  terms  of  the  con- 
vention. 

I  concede,  in  the  fullest  terms,  the  integrity  of  the  local  sover- 
eignty ;  and  that,  instead  of  contradicting,  seems  to  corroborate  my 
view  of  the  subject;  for  how  shall  the  consuls  maintain  the  internal 
order  of  the  merchant-vessels  of  their  nation, — how,  in  the  foreign 
port,  shall  they  imprison  persons, — save  through  the  assistance  of  the 
local  authority?  Are  they  to  do  it  by  their  own  unaided  force  in 
the  presence  of  the  local  jurisdiction? 

Surely,  to  allow  this,  would  be  to  introduce  the  greatest  disor- 
ders, which  can  be  avoided  only  by  having  recurrence  to  the  local 
authority  for  its  own  lawful  action  in  behalf  of  the  consul. 

However  this  may  be,  my  conviction  is  clear  that  the  local  au- 
thority, even  if  it  may  refuse  to  aid,  cannot  lawfully  interpose  to 
defeat,  the  lawful  confinement  of  any  members  of  the  crew  by  the 
master,  on  board  the  ship,  with  advise  and  approbation  of  the  consul. 

If  the  parties  confined  have  the  lawful  right  to  be  discharged 
from  such  custody,  they  may  obtain  it  on  application  to  the  consul. 
That  is  one  of  his  legitimate,  exclusive,  and  ordinary  functions. 

That  the  right  and  the  power  of  the  local  jurisdiction  are  such 
only  as  here  suggested,  is  the  opinion  of  the  jurists  of  France. 

Ortolan  states  the  doctrine,  as  follows : 

"As  to  ships  of  commerce,  we  know  that  when  they  are  in  the 
territorial  waters  of  a  foreign  state,  they  are  not  exempt  from  the 
local  police  and  jurisdiction,  except  as  to  facts  happening  on  hoard 
ivhich  do  not  concern  the  tranquility  of  the  port,  or  persons  foreign 
to  the  crew.  For  all  other  facts  they  remain  (78)  subject  to  this 
police  and  this  jurisdiction.  Hence,  it  follows  that  the  local  au- 
thority has  the  right  to  pass  on  board  these  vessels,  there  to  pursue, 
search  for,  and  arrest  persons  who  have  been  guilty,  either  on  shore, 
or  even  on  board,  of  acts  amenable  to  the  territorial  justice."  (Dip- 
lomatie  de  la  Mer,  torn,  i,  p.  335.) 

561 


Vol.  VIII,  p.  73  (GUSHING) 

In  the  present  case,  the  crimes  committed  on  board  the  Atalanta, 
were  not  "amenable  to  the  territorial  justice;"  they  did  not  concern 
"the  tranquility  of  the  port,"  nor  did  they  affect  any  "persons  for- 
eign to  the  crew." 

The  rule  of  law,  as  thus  laid  do\Mi  by  Ortolan,  seems  to  have 
been  drawn  from  a  decision  of  the  council  of  state  in  the  time  of  the 
Emperor  Napoleon  I.,  to  the  point  that  the  local  authority  will  not 
intermeddle  with  acts,  even  crimes,  committed  on  board  a  foreign  ship 
in  such  circumstances.     (Ortolan,  torn,  i  p.  450,  annexe,  ii.) 

Nay,  the  French  laws  do  not  hesitate  to  prescribe  that  when 
crimes  are  committed  on  board  a  French  vessel  in  a  foreign  port,  hy 
one  of  tlie  crew  against  another  of  the  same  crew,  the  French  consul 
is  to  resist  the  application  of  the  local  authority  to  the  case.  (Ord. 
du  29  Oct.  1833,  tit.  iii,  art.  22,— De.  Clercqq,  Form.  torn,  ii,  p.  65.) 

This  doctrine  has  become  so  firmly  fixed  in  France,  that  the  text 
writers  assume  it  as  a  rule  of  international  law.  (See  M.  M.  de 
Clercqq  et  de  Vallet,  Guide  Pratique,  tom.  i,  p.  366.) 

Indeed,  the  recent  legislation  of  France  confers  on  her  consuls 
unmistakable  jurisdiction  in  these  matters.  (Decret  du  14  Mars. 
1852;  see  De  Clercqq,  Formulaire,  tom.  ii,  p.  348.) 

Previously,  their  duties  were  in  the  nature  of  surveillance,  rather 
than  jurisdiction.     (Moreuil,  Guide  des  Agens  Cons.  p.  389.) 

We  de  not  go  so  far  in  this  as  France.  I  admit,  as  already  stated, 
the  local  authority  in  regard  to  crimes  committed  on  board  a  mer- 
chantman in  the  territorial  waters.  But  I  deny  that  the  local  author- 
ity has  any  right  to  interfere  with  persons  lawfully  detained  on  board 
the  ship  by  the  laws  of  the  country  to  which  she  belongs,  as  for  a 
crime  committed  on  the  high  seas  among  members  of  the  crew,  and  not 
justiciable  by  the  foreign  jurisdiction.  France,  at  least,  cannot  deny 
to  us,  it  (79)  would  seem,  this  exemption,  when  she  herself  claims 
to  extend  it  so  much  further,  and  make  it  comprehend  occurrences 
internal  to  the  crew,  even  though  happening  in  port. 

The  doctrine  of  the  public  law  of  Europe  on  this  point  is  well 
stated  by  Riquelme,  as  follows: 

"Crimes  committed  on  the  high  seas,  whether  on  board  ships  of 
war  or  merchantmen,  are  considered  as  committed  in  the  territory  of 
the  .state  to  which  the  ship  belongs,  because  only  the  laws  of  the  latter 
are  infringed,  and  consequently  only  the  jurisdiction  of  the  same  is 
called  upon  to  adjudicate,  whether  the  accused  be  of  the  nationality 
of  the  ship  or  a  foreigner,  and  whether  the  crime  were  committed 
against  a  fellow-countryman  or  between  foreign  passengers. 

"If  the  ship,  on  board  of  which  the  crime  has  been  committed, 
arrives  then  at  a  port,  the  jurisdictional  right  of  the  territory,  to 

562 


OPINIONS  OF  ATTORNEYS  GENERAL 

which  the  ship  belongs  over  the  accused,  does  not  on  that  account 
cease.  So  that,  if  one  of  these  were  a  foreigner,  subject  to  the  state 
to  which  the  port,  at  which  the  ship  stops,  belongs,  even  in  that  case 
it  is  the  right  of  the  captain  to  detain  him  on  board,  that  he  may  be 
judged  by  the  tribunals  of  the  ship's  country.  And  if  this  passenger 
should  get  on  shore,  and  should  institute  before  the  tribunals  of  his 
country  proceedings  against  the  captain,  the  local  authority  will  be 
incompetent  to  judge  the  foreign  captain,  because  the  fact  in  question 
occurred  in  a  foreign  country,  that  is,  on  board  a  foreign  merchant- 
man on  the  high  sea,  and  because,  by  embarking  in  that  ship,  the  party 
is  presumed  to  have  submitted  himself  to  the  laws  of  the  foreign  ter- 
ritory of  which  the  ship  constitutes  a  part. 

"When  the  crime  is  not  committed  on  the  high  seas,  but  while 
the  ship  is  in  territorial  waters,  then  it  is  necessary  to  distinguish  be- 
tween ships  of  war  and  merchantmen.  In  the  first  case,  the  principle 
of  exterritoriality  covers  the  ship  from  all  foreign  intervention  or 
investigation.     *     * 

' '  In  the  second  case,  when  the  crime  has  been  committed  on  board 
a  merchantman  in  a  foreign  port,  the  resolution  is  different,  because 
the  condition  of  a  merchantman  in  a  foreign  port  is  different  from 
that  of  a  man-of-war.  The  rule  in  these  cases,  in  default  of  treaties 
or  inducements  of  reciprocity  (80)  determining  it,  is,  that  if  the  of- 
fence affect  only  the  interior  discipline  of  the  ship,  without  disturbing 
nor  compromitting  the  tranquillity  of  the  port,  the  local  authority 
ought  to  declare  itself  incompetent  unless  its  assistance  is  requested, 
because  the  true  regulator  of  these  questions,  in  which  the  local  au- 
thority has  no  interest,  is  the  consul. 

"But,  if  the  offence  has  been  committed  by  one  of  the  crew 
against  a  subject  of  the  country  or  another  foreigner,  or  if,  occur- 
ring among  those  of  the  crew,  it  be  of  a  nature  to  compromise  the  tran- 
quillity of  the  port,  then  the  territorial  jurisdiction  is  entitled  to  pun- 
ish the  crime  even  although  the  accused  undertake  to  claim  the  pro- 
tection of  the  ship."  (Riquelme,  Derecho  Intemacional,  torn,  i,  p. 
243,  245.) 

These  are  just  and  reasonable  views,  applicable  to  the  present 
case. 

I  confess  myself  wholly  at  a  loss,  therefore,  to  see  on  what  as- 
signable ground  of  strict  international  right  it  was  that  the  local 
authority  at  Marseilles  proceeded  in  withdrawing  these  parties  from 
their  lawful  confinement  on  board  the  Atalanta. 

If,  indeed,  it  were  the  intention  of  France  to  try  these  men  for 
their  crime,  and  it  had  been  committed  in  the  territorial  waters,  so 
as  to  be  capable  of  being  tried  there,  then,  indeed,  we  might  see 

563 


Vol.  VIII,  p.  73  (GUSHING) 

cause  for  withdrawing  them  from  the  custody  of  the  ship  or  the  con- 
sul.   But  no  such  thing  is  proposed  in  the  despatch  of  M.  Baroche. 

If  the  legality  of  what  has  been  done  be  admitted,  then  municipal 
crimes  perpetrated  on  the  high  seas  will  much  of  the  time  escape  un- 
punished. One  term  of  every  voyage  is  a  foreign  port.  If  a  crime, 
other  than  piracy,  be  conmiitted  while  on  the  way  thither,  and  the 
criminal  cannot  be  detained  on  board  the  ship  or  on  shore  subject  to 
the  discretion  of  the  consul,  he  cannot  be  tried ;  for  the  local  authority 
cannot  try  him,  and  if  he  is  to  be  withdrawn  from  the  custody  of 
the  ship,  he  cannot  be  tried  in  the  country  to  which  she  belongs,  and 
which  alone  has  jurisdiction. 

Thus  the  effect  of  the  course  entered  upon  by  the  local  authority 
at  Marseilles,  if  it  should  be  sanctioned  by  the  Emperor's  government, 
and  admitted  by  the  United  States,  would  (81)  be  to  discharge  these 
criminals  without  punishment,  to  set  the  example  of  immunity  of 
crime  in  all  such  cases  for  the  future,  and  tend  to  the  most  calamitous 
consequences,  as  respects  the  safety  of  the  commercial  marine  of  both 
France  and  the  United  States. 

The  public  evil  in  this  respect  would  be  sufficiently  serious,  when 
considered  in  the  relation  to  the  case  of  ordinary  voyages,  but  in 
other  cases,  such  as  that  of  vessels  forced  into  port  by  stress  of 
weather,  or  other  common  perils  of  the  sea,  it  would  grow  to  be  intol- 
erable, and  more  especially  as  in  the  case  of  acts  of  insubordination 
on  the  part  of  the  crew.  Meanwhile,  seamen  would  have  nothing  to 
do  but  to  seize  the  ship  and  make  for  a  foreign  port,  there  to  be  re- 
leased by  the  local  authority.  It  would  be  to  hold  out  inducements 
and  temptation  to  mutiny  and  murder  on  the  high  seas. 

The  superior  intelligence  of  M.  Baroche  cannot  fail  to  see  this, 
and  to  impel  him  to  suggest  to  the  diplomatic  agents  of  any  other 
government,  who  have  made  representations  on  the  subject  that,  in 
seeking,  for  whatever  plausible  reason,  to  abstract  these  men  from 
the  only  jurisdiction  which  can  try  the  offence,  they  do  irreparable 
prejudice  to  the  interests  of  all  the  maritime  states  of  Europe  and 
America. 

It  cannot  be  for  the  interest  of  Sardinia,  for  instance,  of  Austria, 
of  Spain,  to  have  it  established  as  a  rule  of  public  law,  that  seamen 
who  have  committed  crimes  appertaining  to  their  penal  jurisdiction 
and  to  no  other,  shall  be  set  free  the  moment  the  ship  in  which  they 
may  be,  touches  at  a  foreign  port.  It  is  for  the  common  benefit  of  the 
civilized  world  to  see  to  the  condign  punishment  of  all  crimes  commit- 
ted on  the  high  seas. 

Permit  me  to  add  that  the  United  States,  while  recognizing  the 
local  authority  generally  in  the  case  of  merchant  ships,  have  never 

564 


OPINIONS  OF  ATTORNEYS  GENERAL 

claimed  nor  conceded  it  as  to  things  not  appertaining  to  the  terri- 
torial jurisdiction.  We  have  constantly  affirmed  our  right  to  detain 
on  board  our  ships,  even  in  a  foreign  port,  persons  held  to  such  de- 
tention by  the  laws  of  the  United  States.  (See  Mr.  Legare's  opinion 
of  July  20,  1842.  Also  Wheaton's  Elements  by  Lawrence,  p.  156 
note.) 

Permit  me  also  to  remind  you  of  the  recent  case  of  the  ship  (82) 
Corsica  at  Calcutta,  (Opinion  June  25,  1856,)  which  greatly  re- 
sembles this  in  many  respects,  involving  the  question  of  extradition, 
as  well  as  detention,  and  which  was  disposed  of  by  the  British  gov- 
ernment, on  both  points,  as  claimed  by  us  here,  that  is,  as  a  matter  ap- 
pertaining to  the  jurisdiction  of  the  United  States. 

I  have  discussed  this  part  of  the  subject,  as  you  will  have  per- 
ceived, in  points  of  view,  which  are  independent  of  any  seriously  de- 
batable matter  in  the  construction  of  the  consular  convention.  Before 
leaving  it,  allow  me  to  say  a  few  words  on  that  question. 

The  relevant  stipulations  of  the  convention  are  contained  in  the 
8th  article,  as  follows: 

"The  respective  consuls  general,  consuls,  vice  consuls,  or  consu- 
lar agents,  shall  have  exclusive  charge  of  the  internal  order  of  the 
merchant-vessels  of  their  nations,  and  shall  alone  take  cognizance  of 
differences  which  may  arise,  either  at  sea,  or  in  port,  between  the 
captain,  officers,  and  crew  without  exception,  particularly  in  refer- 
ence to  the  adjustment  of  wages  and  the  execution  of  contracts.  The 
local  authorities  shall  not,  on  any  pretext,  interfere  in  these  differ- 
ences, but  shall  lend  forcible  aid  to  the  consuls,  when  they  may  ask 
it,  to  arrest  and  imprison  all  persons  composing  the  crew  whom  they 
may  deem  it  necessary  to  confine.  Those  persons  shall  be  arrested  at 
the  sole  request  of  the  consuls,  addressed  in  writing  to  the  local  au- 
thority, and  supported  by  an  official  extract  from  the  register  of  the 
ship,  or  the  list  of  the  crew,  and  shall  be  held  during  the  whole  time 
of  their  stay  in  the  port,  at  the  disposal  of  the  consuls.  *  *  Their 
release  shall  be  granted  at  the  mere  request  of  the  consuls  made  in 
writing.  The  expenses  of  the  arrest  and  detention  of  those  persons 
shall  be  paid  by  the  consuls." 

I  conceive  that,  regarding  this  article  as  we  should,  that  is,  as 
a  part  of  our  public  law,  adapted  to,  and  cohering  with,  other  parts 
of  our  public  law,  all  the  difficulties  in  its  construction  vanish. 

The  national  sovereignty  of  the  United  States,  like  that  of  France, 
is  complete  within  its  own  territory.  Neither  nation  confers  exter- 
ritoriality on  foreign  merchant  ships  within  its  (83)  waters.  Neither 
nation  asserts  for  its  consuls  judicial  authority  for  the  trial  of  crimes 
except  in  countries  without  the  pale  of  Christendom.    But  each  nation 

565 


Vol.  VIII,  p.  73  (GUSHING) 

does,  by  the  general  rule  of  public  law,  and  more  especially  by  this 
convention,  as  between  France  and  the  United  States,  concede  to  the 
consuls  of  the  other  a  certain  authority  of  discipline,  and  to  the 
ships  of  the  other  a  certain  privilege  in  its  ports. 

As  to  the  questions  of  mere  civil  right,  internal  to  the  ship  and 
to  her  crew,  even  if  the  latter  be  on  shore,  we  agree  that  the  consuls 
are  to  have  cognizance,  and  are  to  be  aided  by  the  local  authorities 
in  this  respect. 

But  now  as  to  criminal  matters?  These,  it  is  clear,  cannot  be 
tried  and  judged  by  the  American  consul  in  Marseilles,  nor  by  the 
French  consul  in  New  York. 

Is  the  consul,  for  this  reason,  stripped  of  all  power,  and  the 
ship  herself  of  all  immunity,  in  respect  of  persons  subject  to  detention 
for  any  cause,  either  civil  or  criminal?  I  think  not.  I  think  when 
the  convention  says  that  the  respective  consuls  "shall  have  exclusive 
charge  of  th£  internal  order  of  the  merchant  vessels  of  their  nation," 
the  word  "internal"  imparts  perfect  precision  to  the  proposition. 

What  is  "internal"  in  this  context?  Plainly,  it  seems  to  me, 
everything  which  does  not  appertain,  either  by  the  law  of  nations  or 
the  municipal  law,  to  the  local  jurisdiction.  If  the  acts  of  disorder, 
if  the  "differences"  be  matters  of  local  jurisdiction,  then,  as  ques- 
tions, they  are,  jurisdiction  external  to  the  ship. 

Apply  the  test  to  this  or  any  other  case  of  the  same  principle, 
and  it  reconciles  all  controversy.  \Yliere  there  is  in  what  occurs  on 
board  the  ship  no  infringement  of  the  laws  of  France  or  of  the  United 
States,  then  the  local  authority  has  no  concern  in  the  matter,  save  in 
the  terms  of  the  article  to  support  the  consul  in  maintaining  the  au- 
thority and  executing  the  laws  of  his  own  government. 

I  do  not  mean  to  say  that  the  local  authority  may  not,  in  either 
case,  inquire  into  the  legality  of  any  alleged  act  of  detention  on  board 
the  foreign  ship ;  but  on  ascertaining  such  legality,  there  the  local 
authority  is  bound  to  stop.  And  surely  no  detention  could  be  more 
thoroughly  lawful  than  that  of  a  (84)  mutineer  on  his  way  to  the 
place  of  examination  and  judgment. 

2.  As  to  the  extradition  of  the  thirteen  men  still  held  in  prison 
at  Marseilles. 

I  doubt  whether  it  is  properly  a  question  of  extradition. 

It  is  manifest  that  these  men  are  not  fugitives  from  the  justice 
of  the  United  States  seeking  refuge  in  France. 

In  truth,  these  men  have  either  been  wrongfully  taken  from  our 
national  custody  by  inadvertance  of  the  local  authority,  which  ought, 
in  the  mere  correction  of  error,  to  return  them  to  our  custody ;  or  else 
they  are  to  be  regarded  as  prisoners  held  by  the  local  authority  pro 

566 


OPINIONS  OF  ATTORNEYS  GENERAL 

tanto  acting  for  us  under  the  consular  convention,  and  bound  to  re- 
transfer  them  on  demand  to  the  direction  of  the  consul  in  order  to  be 
replaced  on  board  the  Atalanta. 

But,  if  it  be  a  case  of  extradition,  then  they  are  subject  to  it  by 
the  terms  of  the  convention  of  November  9,  1843.  That  convention, 
it  is  true,  does  not  provide  for  the  crime  of  revolt  or  mutiny  on  board 
ship :  but  it  provides  for  that  of  "attempt  to  commit  murder,"  (tenta- 
tive de  meurtre.)  That  crime  was  committed  in  this  case,  it  was  com- 
mitted within  the  putative  territory  of  the  Union,  it  is  justiciable  by 
the  federal  courts  and  by  them  alone ;  and  you  may,  in  my  judgment, 
rightfully  demand  their  extradition  for  this  cause. 

At  the  same  time  the  convention  speaks  of  "persons  who  shall 
be  found  within  the  territories  of  the  other,"  and  therefore  the  case 
comes  within  the  letter  of  the  convention. 

It  has  been  held  in  some  parts  of  the  United  States,  that  a  mis- 
demeanor is  merged  in  a  felony,  and  that  a  party  guilty  of  the  higher 
cannot  be  charged  with  the  lower  offence. 

But  that  doctrine  is  losing  ground.  And  it  has  never  been  held 
that,  where  an  act  involves  two  distinct  felonies,  the  party  may  not  be 
charged  on  either,  at  the  election  of  the  prosecuting  officers  of  the 
government. 

I  concur  with  Mr.  Mason  in  opinion  that  the  local  authority  of 
Marseilles  exceeded  its  lawful  power  in  the  present  case,  in  substance 
as  well  as  in  form. 

(85)  The  latter  fact  is  implied  by  the  new  order  of  the  minister 
of  marine  of  June  24,  1856,  regarding  the  visitation  of  foreign  mer- 
chant ships,  in  the  ports  of  France. 

This  order,  supplemental  to  those  of  July  26,  1832,  and  January 
24,  1855,  admits  that  theretofore  the  visitation  should  be  made  with 
concurrence  of  the  consul. 

It  is  material  to  observe,  however,  that  the  subject-matter  of  such 
visitation,  on  the  face  of  all  these  orders,  is  perquisition  into  acts  in 
violation  of  the  laws  of  France.  No  such  acts  are  pretended  in  the 
present  case. 

At  the  same  time,  I  do  entire  justice  to  the  motives  of  the  Emper- 
or's government  in  this  transaction.  They  are  frankly  stated  by  M. 
Baroche. 

The  guilty  parties  are  subjects  of  other  nations,  which,  like  us, 
are  in  amity  with  France,  who  seeks  only  to  discharge  her  public  duty 
to  each  with  perfect  impartiality.  It  is  objections  of  theirs,  rather  than 
his  own,  which  M.  Baroche  brings  to  the  notice  of  Mr.  Mason.  Allow 
me  to  submit  two  or  three  legal  suggestions  applicable  to  this  point. 

I  do  not  conceive  that  another  nation,  Sardinia  for  instance,  can, 

567 


Vol.  VIII.  p.  73  (GUSHING) 

simply  because  these  men  are  her  subjects,  interpose  in  the  question 
for  any  purpose  except  to  see  that  they  be  lawfully  tried.  If  a  sub- 
ject of  Sardinia,  having  committed  a  crime  in  the  United  States,  flee 
to  France,  can  Sardinia  justly  object  to  his  extradition  ?    Surely  not. 

If  indeed  the  Sardinian  be  a  fugitive  from  the  justice  of  Sardinia, 
having  committed  a  previous  crime  there,  and  his  extradition  be  de- 
manded simultaneously  by  Sardinia  and  by  the  United  States,  then, 
indeed,  France  might  be  embarrassed  by  the  conflicting  appeals  to  her 
treaty  engagements,  and  her  loyalty. 

But  this  embarrassment  only  applies  to  the  case  regarded  as  a 
question  of  extradition.  Taking  the  other,  and  as  it  seems  to  me  the 
truer  view  of  the  subject,  there  is  no  conflict  of  duties  on  the  side  of 
France ;  for  the  guilty  parties  have  been  from  the  beginning,  and  are 
still,  in  the  constructive  if  not  in  the  actual  custody  of  the  United 
States.  That  consideration  furnishes  a  (86)  complete  answer  to  the 
reclamations  of  any  other  government. 

I  have  the  honor  to  be,  very  respectfully, 

C.  GUSHING. 
Hon.  ^yiUiam  L.  Marcy,  Secretary  of  State. 


Vol.  VIII,  p.  98  (Gushing) 

(98)  ESTATES  OF  FOREIGN  DECEDENTS 

The  estates  of  foreigners  dying  in  the  United  States  are  settled  by  the  local 
authorities. 

Administration  may  be  granted  to  the  next  of  kin  if  he  reside  in  the  state. 

The  consul  of  the  decedent's  country  can  intervene  of  right  only  by  way  of 
surveillance,  and  without  jurisdiction. 

Attorney  General's  Office, 

September  12,  1856. 

Sir:  I  have  the  honor  to  respond  herewith  to  the  inquiries  of 
the  envoy  of  the  Emperor  of  Brazil,  Mr,  Gavaleante  d 'Albuquerque, 
regarding  the  settlement  of  the  estates  of  persons,  subjects  of  other 
governments,  who  may  die  in  the  United  States,  leaving  property 
here. 

It  is  necessary  to  remark,  in  the  first  place,  that,  with  exceptions 
not  material  to  be  mentioned  here,  because  of  their  little  concern  to 
the  interests  of  foreigners — with  such  immaterial  exceptions,  the  reg- 
ulation of  successions  in  the  United  States,  whether  testate  or  intes- 
tate, belongs  to  the  local  jurisdiction  of  the  individual  state. 

In  the  second  place,  if  the  property  of  the  decedent  be  real  es- 

568 


OPINIONS  OF  ATTORNEYS  GENERAL 

tate,  the  immovable  property  of  the  civil  law, — then,  its  dis-(99) 
position  depends  altogether  on  the  laws  of  the  place.  Unless  there  be 
treaty  stipulations  to  the  contrary,  or  the  succession  consists  of  per- 
sonal estate  exclusively,  the  local  authorities  are  alone  competent  to 
determine  questions  of  inheritance  and  succession. 

As  to  movables,  personal  effects, — then,  also,  unless  the  contrary 
be  stipulated  by  treaty,  the  administration  of  the  estate  of  a  foreign 
decedent  is  primarily  a  question  of  the  local  jurisdiction,  and  his 
consul  can  intervene  only  so  far  as  the  local  law  may  permit,  though 
the  distrihution  of  the  estate  will  not  of  necessity  be  governed  by  the 
local  law. 

The  course  of  proceeding,  with  relation  to  the  rights  of  third 
parties  heirs  or  creditors,  may  be  illustrated  by  example  of  the  laws 
of  the  state  of  New  York. 

If  any  person  die  intestate  in  the  state  of  New  York,  leaving  ef- 
fects to  be  administered,  the  administration  will  be  granted  to  the 
widow  or  next  of  kin,  or  in  their  default,  to  a  creditor ;  provided  that 
the  administrator  must  be  a  person  sui  juris  in  law,  and  either  a  citi- 
zen of  the  United  States,  or,  if  not,  then  a  resident  of  the  state.  If 
no  person  so  entitled  appear  to  administer,  then  administration  will 
go  to  some  appropriate  public  officer  of  the  state.  If  the  next  of  kin 
be  a  minor,  his  guardian  may  be  appointed  administrator  in  his  stead. 

If  the  party  die  testate,  leaving  effects  in  the  state,  letters  testa- 
mentary may  be  granted  to  the  testamentary  executor,  if  he  be  com- 
petent to  act,  that  is,  if  he  be  sui  juris,  and  unless  he  be  an  alien  not 
resident  in  the  state. 

In  either  contingency,  the  distribution  of  the  property  in  case  of 
intentacy,  and  its  testamentary  destination  in  case  of  testacy,  will  be 
governed  by  the  law  of  the  decedent's  proper  domicil,  with  some  ex- 
ceptions, perhaps,  where  the  competing  claims  of  domestic  and  foreign 
creditors  affect  the  property. 

Such  is,  in  substance,  the  legislation  of  the  state  of  New  York  in 
these  respects.  There  is  difference  of  detail  in  some  of  the  states ;  but 
their  legislation  is  all  referable  to  the  same  general  principles  of  jur- 
isprudence. 

In  all  these  cases,  the  consul  of  the  decedent's  coimtry  has  (100) 
no  jurisdiction :  he  may  intervene  by  way  of  advice,  or  in  the  sense 
of  surveillance,  but  not  otherwise  as  consul,  and  of  right. 

Thus,  if  the  decedent,  being  a  foreigner,  leave  in  the  state  a  minor 
heir,  the  consul  of  his  country  may  intervene  to  see  that  he  have  a 
proper  guardian  to  secure  his  interests  in  the  succession.  Or,  if  the 
decedent  leave  a  will  intended  to  operate  in  his  own  country,  it  is 
the  right  of  the  consul,  and  his  duty,  if  the  circumstances  require  it, 

569 


Vol.  Ill,  p.  98  (GUSHING) 

that  is.  in  the  absence  of  adult  heirs  on  the  spot,  to  see  to  the  safe- 
keeping of  the  will,  and  its  transmission  to  the  parties  entitled. 

Sundry  legislative  acts  of  the  United  States,  proceed  on  the  as- 
sumption that  American  consuls,  in  foreign  countries,  will  collect  and 
remit  the  assets  of  deceased  Americans.  Their  authority  to  do  this 
will  depend,  of  course,  on  the  law  of  the  foreign  country : — if  permit- 
ted by  that  law,  and  so  far  as  permitted,  the  consul  may  do  it,  but 
not  otherwise,  nor  further,  imless  allowed  by  treaty.  And  so  it  is 
with  respect  to  foreign  consuls  in  the  states  of  the  Union. 

It  seems  very  clear  that  if  any  contentious  question  arises, — as 
if  there  be  debts  due  the  estate  of  the  decedent,  or  conflicting  claims 
upon  it, — there  can  be  no  settlement  of  the  estate  by  the  consul;  it 
can  be  administered  only  by  due  appointment  of  the  local  authority. 

But  if  there  be  no  litigious  matter  involved,  a  traveller  or  other 
transient  person  dying  with  personal  effects  in  hand,  the  consul  may 
well  take  possession  of  the  same  for  transmission  to  the  decedent's 
coimtr}\ 

The  true  relations  of  the  question  are  sufficiently  illustrated  by 
the  tenor  of  an  old  article  of  treaty  between  England  and  Spain,  re- 
peated by  the  treaty  of  Utrecht;  according  to  which  it  is  stipulated 
that  the  respective  foreign  consuls  may  inventory  the  effects  of  a  de- 
ceased countryman,  and  remit  them,  without  intervention  of  any 
local  tribunal.  (See  Miltitz,  Des  Consulats  a  I'Etranger,  partie  ii, 
p.  408.  414,  425.) 

The  difficulty  of  complying  Avith  this  stipulation,  in  Spain,  soon 
became  apparent,  in  consequence  of  which  we  have  the  law  of  Novem- 
ber 20,  1724,  providing  that  the  local  authority  shall  make  duplicate 
inventory,  and  shall  hear  and  adjudge  (101)  all  contested  matters. 
(Novisima  Recopilacion,  lib.  vi,  tit.  13,  1.  4.) 

The  same  difficulty  must  of  course  have  existed  in  England. 

Consuls,  in  one  country,  or  the  other,  raised  the  question  from 
time  to  time,  until  in  the  years  1839  and  1840,  by  undergoing  almost 
simultaneous  discussion  in  Madrid  and  in  London,  through  the  claim 
of  a  British  consul  in  Spain,  to  exercise  complete  jurisdiction  in  the 
matter,  which  the  Spanish  government  refused, — and  the  claim  of  a 
Spanish  consul  in  England,  which  the  British  government  refused, — 
it  was  at  length  settled,  to  the  effect,  that,  notwithstanding  the  treaty, 
the  consular  right  on  both  sides  must  be  limited  to  the  inventory  of 
the  effects  found  in  the  dwelling  of  the  deceased,  subject  always  to 
the  intervention  of  the  local  authorities  in  case  of  any  contested  right 
on  the  part  of  third  persons.  (Riquelme,  Derecho  Internacional,  torn, 
i,  p.  422.) 

A  decisive  case  to  the  same  point,  which  recently  occurred  in 

570 


OPINIONS  OF  ATTORNEYS  GENERAL 

the  island  of  Mauritius  between  the  French  consul  and  the  local  auth- 
orities, is  reported  by  Moreuil.     (Agents  Consulaires,  p.  515.) 

And  the  general  rule,  undoubtedly,  in  all  the  countries  of  Christ- 
endom, is,  that  the  local  authority  has  power  to  take  the  inventory  if 
it  will,  the  functions  of  the  consul  being  then  bounded  to  the  right  of 
assisting  in  behalf  of  the  legal  representatives  of  the  deceased.  (San- 
tos, Traite  du  Consulat,  torn,  i,  p.  21;  torn,  ii,  note  52.) 

Such,  and  such  only,  except  where  special  stipulations  of  treaty 
intervene  to  change  the  rule,  is  the  admitted  authority  of  foreign 
consuls,  as  to  the  questions  of  succession,  in  the  several  states  of  the 
Union,  as  well  as  in  Europe.  (De  Clerq  et  De  Vallat,  Guide  des 
Consulats,  p.  686.) 

In  the  federal  courts  of  admiralty,  when  adjudicating  cases  of 
prize,  or  other  questions  of  maritime  and  international  right,  foreign 
consuls  are  admitted  to  appear  in  behalf  of  the  interests  of  their 
coimtrj^men,  absent  or  present;  but  even  there,  what  they  do  is  in 
the  nature  of  surveilance  rather  than  jurisdiction ;  for  they  are  not 
deemed  competent  to  receive  the  proceeds  of  (102)  property  libelled, 
in  the  absence  of  specific  powers  emanating  from  competent  authority. 

In  so  far  as  the  consul  has  power  to  act  in  these  matters  at  all,  he 
may  act  by  procuration. 

As  to  the  extent  of  the  country,  to  which  the  consul's  faculty  of 
surveillance  reaches  in  matters  of  succession,  that  of  course  depends 
primarily  on  the  instructions  of  his  government  and  the  tenor  of 
his  exequatur;  but  any  difficulty  arising  in  this  respect  could  be  re- 
moved by  the  direct  interposition  of  the  minister  of  that  government 
accredited  to  the  United  States. 

I  believe  these  observations  cover  all  the  points  of  inquiry  sug- 
gested by  Mr.  Cavalcante  d 'Albuquerque. 

I  have  the  honor  to  be,  very  respectfully, 

C.  GUSHING. 
Hon.  Wm.  L.  Marcy,  Secretary  of  State. 


Vol.  VIII,  p.  169  (Gushing) 

CITIZENS— FOEEIGN  CONSULS 

Citizens  of  the  United  States,  who  hold  foreign  consulates  in  the  United 
States,  are  not  exempt  from  jury  duty  or  service  in  the  militia  by  the  law  of  na- 
tions, or  by  the  constitution  and  laws  of  the  United  States,  nor  unless  exempted 
by  the  statutes  of  the  state  of  the  Union  in  which  they  may  respectively  reside. 

Attorney  General's  Office, 

November  3,  1856. 
Sir:     Inquiry  has  been  addressed  to  me  by  several  persons,  citi- 

571 


Vol.  VIII.  p.  169  (GUSHING) 

zens  of  the  United  States  discharging  consular  functions  here  by  ap- 
pointment of  foreign  governments,  on  the  point,  whether  consuls  so 
situated  are  subject  to  be  called  on  to  serve  in  the  militia  or  as 
jurors.  "While  it  seems  a  little  ungracious  to  refuse  to  make  reply  to 
these  gentlemen,  it  would,  on  the  other  hand,  be  inconvenient  to 
answer  them  officially,  unless  with  your  concurrence.  I  propose, 
therefore,  in  this  communication,  briefly  to  state  my  impressions  on 
the  subject,  in  the  view  of  transmitting  a  copy  to  the  parties  in  ques- 
tion, provided  you  do  not  see  objections  to  that  course. 

No  well-established  imiversality  of  international  rule  exists  on 
the  subject  of  the  immimities  of  consuls  accredited  between  the  states 
of  Christendom.  Of  course,  there  is  diversity  of  practical  administra- 
tion on  this  point,  according  to  the  tenor  of  treaties,  the  customary 
law,  the  legislative  enactments,  and  the  executive  regulations  of  each 
particular  country.  And  the  incompleteness  of  provision,  and  un- 
certainty of  doctrine,  are  especially  notable  in  Great  Britain  and  in 
the  United  States. 

The  stipulations  of  two  recent  treaties,  that  with  France  of  Feb- 
ruary 23,  1853.  and  that  with  the  Netherlands,  of  January  22,  1855, 
afford  apt  and  sufficient  illustration  of  the  state  of  (170)  this  queS' 
tion  at  the  present  time ;  especially  the  former,  which  is  likely  to  con- 
stitute a  new  point  of  departure  in  the  consular  relations  of  the 
United  States  and  of  other  powers  of  Europe  and  America. 

That  convention  stipulates,  in  the  first  place,  that  consuls,  of 
either  France  or  the  United  States,  in  the  country  of  the  other,  shall 
<?njoy  "personal  immunity,  except  in  the  case  of  crime,  exemption 
from  military  billetings,  from  service  in  the  militia  or  the  national 
guard,  and  other  duties  of  the  same  nature,  and  from  all  direct  and 
personal  taxation,  whether  federal,  state,  or  municipal."  (Art.  ii.) 
Consuls  of  the  two  countries  are  thus  placed  respectively  on  the  foot- 
ing of  the  most  enlarged  and  liberal  view  of  consular  functions  and 
rights.     (De  Clercq  et  De  Vallat,  Guide  Pratique,  liv.  i,  ch.  1,  no.  4.) 

If.  however,  the  convention  proceeds  in  substance  to  say,  the 
consul  is  a  citizen  of  the  country  in  which  he  resides  and  officiates,  or 
if  he  becomes  the  owner  of  property  there,  or  engages  in  commerce, 
then,  save  in  things  appertaining  to  his  consular  functions,  he  is  sub- 
ject to  the  same  local  duties  and  obligations  as  other  citizens  of  the 
country,  or  denizens,  who  are  proprietors  or  merchants.  (Art.  ii.) 
This,  also,  is  conformable  to  the  spirit  of  international  jurisprudence. 

Comparing  the  two  members  of  the  stipulations  cited,  we  per- 
ceive that  foreign  consuls,  subjects  of  the  government  they  represent, 
and  not  engaged  in  commerce,  and  they  only,  are  altogether  exempted 
from  service  in  the  militia  and  municipal  charges. 

572 


OPINIONS  OF  ATTORNEYS  GENERAL 

They  are  exempt  from  taxation,  also,  unless  they  have  taxable 
property  in  the  country. 

If  they  have  property  in  the  country,  or  if  they  be  engaged  in 
commerce,  they  are  liable  to  taxation,  even  if  they  be  subjects  of  the 
foreign  government ;  and  a  fortiori  if  they  be  citizens  of  the  country 
in  which  they  reside. 

If  the  foreign  consul,  being  a  subject  of  the  government  he  rep- 
resents or  of  some  other  foreign  government,  engage  in  commerce,  he 
then  stands  on  the  footing  of  other  denizens.  He  will  not  be  compe- 
tent to  serve  on  juries;  nor  will  he  be  subject  (171)  to  enrollment  in 
the  militia.  His  condition  in  this  respect  is  not  a  privilege  as  consul, 
but  a  disability  as  alien. 

As  to  the  particular  question  now  before  me,  some  writers  have 
assumed,  without  due  authority,  that  a  citizen  of  the  country,  bearing 
the  consulate  of  a  foreign  country,  is  exempted  by  the  law  of  nations 
from  service  in  the  civic  guards  or  the  militia.  Such  is  the  assertion 
of  Phillimore,  (International  Law,  vol.  ii,  p.  246,)  repeated  by  Home, 
(Diplomacy,  p.  93.)  In  support  of  the  doctrine,  they  cite  Ch.  de 
Martens.  But  this  author  goes  further,  and  affirms  that  such  a  per- 
son ceases  for  the  time  being  to  be  a  citizen  or  subject  of  his  country. 
(Guide  Diplomatique,  pte  Ire,  ch,  10,  s.  79.)  On  these  premises,  and 
not  as  a  necessary  consequence  of  consular  functions,  the  exemption 
from  mimicipal  charges  might  be  sustained.  But  the  fallacy  of  the 
premises  themselves  has  been  fully  exposed  by  Pinheiro  Ferreira. 
(Ibid,  observ.  ed.  1837,  tom.  i,  p.  214.)  Indeed,  the  material  point 
has  been  adjudicated  by  the  courts,  in  the  discussion  of  the  import- 
ant question  of  the  national  character  in  time  of  war.  (The  Indian 
Chief,  iii  Rob.  p.  27;  The  Falcon,  vi  Rob.  p.  197;  The  Josephine,  iv 
Rob.  p.  26;  Arnold  v.  The  United  Insurance  Co.,  i  Johns.  Cases,  p. 
362.) 

And  the  necessary  subjection  of  a  citizen  of  the  country  to  its 
municipal  laws,  although  he  be  a  foreign  consul,  constitutes,  in  the 
opinion  of  writers  of  authority,  one  of  the  facts  to  be  taken  into  ac- 
count by  the  appointing  government.  (Borel,  Des  Consuls,  ch.  4; 
Vattel,  Droit  des  Gens,  liv.  ii,  ch.  2,  s.  34;  De  Cussy,  Reglements  Con- 
sulaires,  ch.  6,  7;  Wildman,  International  Law,  vol.  i,  p.  135.) 

Persons  thus  situated  are  exempt  from  mimicipal  charges  by 
the  legislation  of  some  countries,  as  in  Denmark,  for  example,  (San- 
tos, Traite  du  Consulat,  tom.  ii,  p.  655,)  and  in  France,  (Moreuil, 
Dictionnaire  des  Chancelleries,  tom.  i,  p.  353.)  But,  in  general,  dis- 
tinction is  maintained  between  such  consuls,  and  those  who  are  sub- 
jects of  the  country  they  represent,  and  especially  consuls  of  the  lat- 
ter class  not  engaged  in  commerce.     (De  Clercq  et  De  Vallat,  uhi 

573 


Vol.  VIII,  p.  ]69  (GUSHING) 

supra.     See,  also,  Mensch,  Manual,  p.  16;  De  Cussy,  Reglements  Con- 
sulaires,  p.  77.) 

In  the  absence  of  any  fixed  rule  of  the  laAV  of  nations  on  (172) 
this  point,  it  must  be  referred,  of  course,  in  each  country,  to  its  own 
particular  laws  for  determination. 

A  citizen  of  the  United  States,  taking  upon  himself  the  consular 
functions  in  his  country  for  a  foreign  government,  does  not  cease  to 
be  a  citizen  of  the  United  States. 

Thus,  the  consul  general  of  the  Argentine  Confederation  in  New 
York,  or  of  Chile  in  "Washington,  if  he  be  otherwise  a  citizen  of  the 
United  States,  still  remains  one.  Neither  would  be  ready  to  admit 
that  he  thus  becomes  an  alien,  so  as  to  be  incompetent  to  hold  land,  to 
own  ships,  to  exercise  other  privileges  and  rights  of  an  American. 

According  to  a  provision  of  the  constitution,  it  is  true,  he  becomes 
disqualified  to  hold,  at  the  same  time,  an  office  under  the  Federal 
government,  without  consent  of  congress.  (Art.  i,  s.  9.  See  opin- 
ions, vol.  vi,  p.  409.)  But  the  constitution  does  not  subject  him  to 
any  other  disqualification. 

On  the  other  hand,  the  constitution  accords  to  every  foreign  con- 
sul the  privilege  to  be  sued  only  in  the  federal  courts.     (Art.  iii,  s.  2.) 

I  do  not  know  that  the  question,  whether  the  privilege  com- 
prehends such  foreign  consuls  as  are  citizens  of  the  United  States,  has 
ever  been  deliberately  considered  and  decided  by  the  supreme  court. 
There  is  one  case  reported,  of  which  the  federal  courts  took  jurisdic- 
tion because  the  party  was  a  consul,  though  a  citizen  of  the  United 
States;  but  it  does  not  appear,  by  the  report,  that  this  fact  was  in- 
dicated to  be  considered  by  the  supreme  court.  (Davis  v.  Packhard, 
\'ii,  Peters,  p.  276.)  The  privilege,  in  such  case,  has  been  recognized 
by  the  courts  of  the  state  of  New  York.  (Valarino  v.  Thompson,  iii 
Selden,  p.  577.)  The  point  can  hardly  be  considered  as  a  settled 
one  until  it  shall  have  been  passed  upon  directly  by  the  supreme 
court  of  the  United  States. 

But  here,  at  any  rate,  it  would  seem,  constitutional  privileges,  as 
well  as  disabilities,  stop. 

Such  a  person  is  not  exempted  from  service  in  the  militia,  either 
by  the  constitution,  or  by  the  act  of  congress  providing  for  military 
enrolments.  (See  act  of  May  8,  1792,  i  Stat,  at  Large,  p.  272.)  Nor 
is  there  in  the  constitution,  or  in  the  acts  (173)  of  congress,  anything 
to  exempt  such  persons  from  service  on  juries.  (See  act  of  Septem- 
ber 24.  1789,  i  Stat,  at  Large,  p.  88;  act  of  May  13,  1800,  ii  Stat,  at 
Large,  p.  82;  act  of  July  20,  1840,  v.  Stat,  at  Large,  p.  394.) 

In  all  these  acts,  it  is  true,  there  is  reserve  of  the  right  of  the 
stiates  to  add  to  the  classes  of  exemption  from  service  in  the  militia; 

574 


OPINIONS  OF  ATTORNEYS  GENERAL 

and  the  designation  of  jurors  for  service  in  the  federal  courts  is  to 
be  made  in  conformity  with  laws  in  force  in  the  respective  states. 
Thus  it  happens  that  any  state  may,  if  it  see  fit,  declare  a  citizen, 
who  is  at  the  same  time  the  consul  of  some  foreign  government,  dis- 
qualified for,  or  exempt  from,  services  in  the  militia,  or  as  a  juror, 
just  as  it  may  pronounce  him  disqualified  for,  or  exempt  from,  the 
exercise  of  the  elective  franchise,  or  the  discharge  of  any  ofiSce  or 
duty,  political  or  municipal,  imder  the  authority  of  the  states. 

I  cannot  undertake  to  say  that  in  some  one  or  more  of  the  states, 
it  may  not  have  been  enacted  that  citizens  acting  as  foreign  consuls 
shall  be  relieved  from  militia  duty,  jury  duty,  and  other  municipal 
duties;  but,  in  the  absence  of  any  such  local  legislation,  they  are  not 
so  exempted  by  the  constitution,  the  law  of  nations,  or  acts  of  con- 
gress. 

If  question  be  suggested  of  the  power  of  the  several  states  in 
this  respect,  the  answer  is  that  where  a  point  of  international  right, 
public  or  private,  is  definitely  settled  by  the  law  of  nations,  it  may, 
perhaps,  be  looked  upon  as  withdrawn  from  the  domain  of  municipal 
authority ;  but  not  otherwise.  And  if  a  matter  be  thus  left  to  the 
domain  of  municipal  authority,  then  the  inquiry,  in  the  United 
States,  as  to  whether  it  is  to  be  regulated  by  federal  law  or  by  the 
law  of  particular  states,  depends  on  the  provisions  of  the  constitu- 
tion of  the  United  States. 

Thus,  exemption  from  personal  taxes,  and  from  other  descrip- 
tions of  municipal  charge,  is  the  undoubted  right  of  foreign  ministers 
by  the  law  of  nations,  and  cannot  be  invaded  by  the  legislation  of 
any  one  of  the  states. 

But  the  present  matter  not  being  definitely  determined  by  the 
law  of  nations,  it  remains  subject  to  the  diplomatic  or  legislative 
power  of  the  United  States  in  the  first  instance,  and,  (174)  in  de- 
fault of  any  action  on  their  part,  to  the  legislative  power  of  the  re- 
spective states. 

Whether  it  be  expedient  or  not  to  bestow  these  exemptions  on 
citizen-consuls,  is  a  matter  not  essential  to  the  solution  of  the  ques- 
tions of  law  presented  to  me  for  consideration.  At  the  same  time, 
two  or  three  suggestions  may  not  be  out  of  place. 

Beyond  all  doubt,  it  is  advantageous  to  the  United  States,  in  its 
relations  with  a  foreign  state,  to  have  consular  functions  bestowed  by 
the  latter  on  their  citizens.  It  is  an  additional  tie  of  interest  and 
channel  of  amicable  intercourse.  On  the  other  hand,  it  is  advan- 
tageous to  the  foreign  state,  especially  to  those  of  the  second  order, 
which  cannot  conveniently  bear  the  expense  of  paid  consulates  in  all 
the  foreign  ports  or  other  places  where  consular  services  may  be 

575 


Vol.  VIII,  p.  169  (GUSHING) 

needed.  Besides  which,  the  consul,  when  he  is  a  citizen  or  subject 
of  the  country  where  he  resides,  can,  by  means  of  local  knowledge  or 
influence,  promote  the  interests  of  the  employing  government  more 
effectuall}^  than  one  of  its  ovm  subjects  could  do,  in  all  the  ordinary 
relations  of  commerce  at  least,  if  not  in  political  matters.  The  United 
States  have  themselves  experienced  this  in  the  case  of  some  of  their 
o\vn  consuls,  subjects  of  the  country  in  which  they  reside,  who  have 
been  useful  to  us,  in  circumstances  where  nothing  could  have  been 
accomplished  by  an  American. 

But  the  counter  inconveniences,  of  according  to  persons  of  this 
class  exemption  from  local  charges  or  duties,  are  very  great.  Con- 
cede semi-diplomatic  fimctions  to  consuls,  who  are  subjects  of  the 
government  employing  them,  and  who  are  not  engaged  in  commerce. 
That  is  well.  But  the  concession  of  the  same  rights  to  consuls  in 
commerce,  and  subjects  of  the  country  where  they  reside,  would  in- 
volve an  extension  of  individual  exemption  and  privileges,  unjust  to 
other  citizens,  and  prejudicial  to  the  public  interests.  The  employ- 
ment of  paid  consuls,  forbidden  to  engage  in  commerce,  will  regulate 
itself  by  reason  of  its  financial  relations.  But  there  will  be  no 
check  of  this  nature  to  the  employment  of  consuls  and  vice-consuls, 
citizens  of  the  coimtry,  with  local  concerns  of  commerce  or  property. 
And  the  indefinite  multiplications  of  persons  so  situated,  if,  in  addition 
to  a  privileged  forum,  they  are  permitted  to  enjoy  (175)  exemption 
from  taxes  and  local  charges  or  duties,  is  contrary  to  the  policy  as  well 
as  the  interest,  not  only  of  the  individual  states,  but  also  of  the  United 
States.     (Viveash  v.  Becker,  iii  M.  and  S.  284.) 

I  have  the  honor  to  be,  very  respectfully, 

C.  GUSHING. 
Hon.  Wm.  L.  Marcy,  Secretary  of  State. 


Vol.  VIII,  p.  380  (Cnshing) 
RELATION  OF  CONSULS  TO  CRIMINALS 

Consuls  of  the  United  States,  in  foreign  countries,  are  required  to  see  to 
persons  charged  with  the  commission  of  crimes  at  sea  or  in  port,  under  circum- 
stances giving  jurisdiction  to  the  courts  of  the  United  States,  and  have  authority 
to  send  such  persons  home  for  trial,  and  in  that  view,  to  inquire  into  the  facts  of 
the  alleged  crime. 

But  the  authority  of  the  consul,  in  such  case,  is  ministerial  not  judicial  in 
its  nature. 

Attorney  General's  Office, 
February  11,  1857. 
Sir:     Your  communication  of  the  30th  of  December,  enclosing 

576 


OPINIONS  OF  ATTORNEYS  GENERAL 

a  letter  from  Mr.  Blythe,  consul  of  the  United  States  in  (381) 
Havana,  submits  question  as  to  the  amount  of  evidence  on  which  a 
consul  in  a  foreign  port  is  authorized  to  arrest  a  person  and  send  him 
to  the  United  States  for  trial:  which  question,  it  is  plain,  extends  to 
the  broader  inquiry  of  the  power  and  the  duty  of  a  consul  in  regard 
to  crimes  committed  within  his  jurisdiction  by  citizens  of  the  United 
States. 

"We  may  omit  from  the  inquiry  the  case  of  consuls  in  China  and 
Turkey,  who,  by  statute,  exercise  judicial  authority  respecting  the 
acts  of  Americans  in  those  countries.     (Act  of  August  11,  1848.) 

Consuls  to  the  Barbary  States  are  invested  by  treaty  with  judicial 
authority.  But  that  authority  has  not  been  expressly  affirmed  by  a 
statute.  And  although  Egypt,  certainly,  and  perhaps  Tunis  and 
Tripoli,  may  be  regarded  as  dependencies  of  Turkey,  and  so  compre- 
hended by  the  statute,  yet  so  much  cannot  be  said  of  Morocco,  Muscat, 
Japan,  nor  of  simdry  other  countries  out  of  the  pale  of  international 
law  of  Christendom. 

Leaving  these  countries  to  be  spoken  of  in  the  sequel,  my  first 
object  will  be  to  consider  the  criminal  jurisdiction  of  consuls  in  the 
countries  of  Christendom:  that  is,  their  general  criminal  authority. 

Mr.  Blythe  refers,  not  without  reason,  to  the  absence  of  any  satis- 
factory information  on  this  point.  There  is  nothing  explicit  regard- 
ing it  in  any  act  of  congress.  Indeed,  the  only  provision  of  possible 
reference  to  it,  is  a  phrase  in  one  of  the  acts,  making  it  the  duty  of 
consuls  to  ''  discountenance  insubordination  by  every  means  within 
their  power;"  meaning,  of  course,  insubordination  among  seamen  on 
board  merchant  ships  of  the  United  States. 

We  are  thus  remitted  to  the  general  rules  of  our  own  public  law 
and  of  that  of  nations,  including  treaties,  for  the  desired  information. 

Consuls  are  not,  by  our  law,  judges;  or,  to  use  the  language  of 
Mr.  Justice  Ware,  "no  portion  of  the  judicial  power  of  the  United 
States  is  conferred  on  consuls."  (The  William  Harris,  Ware's 
Rep.  p.  367,  379.)  In  so  far  as  they  determine  the  civil  controversies 
of  their  countrymen,  they  do  it  only  as  arbi-  (382)  ters;  and,  in 
criminal  matters,  their  authority  is  one  of  police  only,  not  of  judicial 
decision.     (Kent's  Com.,  vol.  1,  p.  42.) 

This  police  authority,  indeed,  goes  no  further  than  detention 
of  an  accused  person,  or,  at  most,  the  examination  of  the  case,  to  see 
w^hether  there  be  cause  of  detention.  And,  even  then,  it  applies  only 
to  matters  occurring  on  shipboard;  for  the  local  jurisdiction  is  com- 
plete as  to  things  occurring  on  shore.  In  such  matters,  the  consul 
may  intervene  voluntarily,  and  sometimes  he  should  do  so  officially, 
in  the  interest  of  his  countrymen ;  but  he  cannot  exercise  jurisdiction. 

577 


Vol.  VIII,  p.  380  (GUSHING) 

The  question  of  his  jurisdiction  refrarding  criminal  acts  oecuring  on 
shipboard,  is  all,  therefore,  which  it  is  profitable  here  to  consider. 

As  to  such  acts,  it  is  obvious,  in  the  first  place,  that  the  power  of 
the  consul  cannot  be  greater  than  the  power  of  his  countrj'.  Hence 
the  preliniinarj'  question  is  of  the  penal  scope  of  the  laws  of  the 
United  States. 

That  is  defined  by  statute.  It  comprehends  piracy  wherever 
committed.  The  pirate  is  hostis  humani  generis,  and  triable  in  any 
coimtry.  Beyond  this,  it  comprehends  acts  "done  upon  the  high 
seas,  or  in  any  river,  haven,  basin  or  bay,  out  of  the  jurisdiction  of 
any  particular  state."  (Act  of  April  30,  1790,  s.  8.)  All  such  acts, 
committed  by  Americans,  are  of  the  jurisdiction  of  the  courts  of  the 
United  States,  and  may  come  before  a  consul  in  some  form  requiring 
action  or  direction  on  his  part.  Thus,  if  a  crime  be  committed  on 
the  high  seas,  the  master  may  detain  the  party  for  trial ;  on  touching 
at  a  port  the  party  may  apply  to  the  consul  for  discharge;  and  it 
may  be  the  duty  of  the  consul  either  to  grant  or  refuse  the  discharge ; 
and,  in  the  latter  case,  he  may  have  occasion  to  call  on  the  local  auth- 
orities to  aid  in  detaining  the  party,  or  in  providing  to  send  him  home 
for  trial.  And  the  same  series  of  incidents  may  occur  in  regard  to 
acts,  happening  on  shipboard,  while  the  ship  is  actually  in  a  foreign 
port,  but  not  falling  within  the  local  jurisdiction.  (See  Opinion  of 
September  6,  1856.) 

The  power  of  the  consul  is  to  refuse  to  discharge,  or  at  most,  to 
detain,  or  call  on  the  master,  or  the  local  authorities,  or  a  man-of-war 
of  his  country,  to  detain,  a  person  so  charged  with  crime. 

(383)  The  new  "consular  regulations"  say  that  "if  a  citizen  of 
the  United  States  be  charged  with  a  criminal  offence  alleged  to  have 
been  committed  at  sea,  on  board  of  an  American  vessel,  (or  on  such 
ve&sel  in  port,  under  .such  circumstances  as  give  jurisdiction  to  the 
courts  of  the  United  States,)  it  will  be  the  duty  of  the  consular  of- 
ficers to  require  that  the  individual  so  accused  be  delivered  to  him  to 
be  sent  home  for  trial."  (Nos.  384,  385.)  All  that  is  but  detention 
by  or  at  the  instance  of  the  consul,  for  the  purpose  of  trial  in  the 
United  States. 

But,  in  order  to  determine  whether  he  shall  detain,  or  require 
detention,  the  consul  must  inquire  into,  and  in  some  sense  judge  and 
decide,  the  question  of  culpability.     That  is  true. 

In  what  manner,  and  by  what  rule,  shall  he  inquire  and  judge? 
I  think  he  must,  of  necessity,  inquire  in  the  usual  w'ay,  that  is,  by  hear- 
ing testimony,  not  as  a  judicial  officer,  to  be  sure,  but  as  consul.  As 
to  judgment,  that  is,  deciding  whether  to  detain  or  not  to  detain,  he 

578 


OPINIONS  OF  ATTORNEYS  GENERAL 

must  have  large  discretion.  I  agree  with  Mr.  Blythe  in  thinking  that 
he  need  not  detain  upon  such  mere  suspicion  of  guilt,  as  would  justify 
an  examining  magistrate  in  holding  to  bail  within  the  United  States. 
There  is  no  judge  at  hand  to  supervise  the  propriety  of  such  deten- 
tion by  writ  of  habeas  corpus,  or  to  admit  to  bail  on  motion.  The 
consul,  in  order  to  induce  him  to  detain,  may  well  require  stronger 
probable  cause  of  belief  in  guilt  than  an  examining  magistrate.  He 
may  do  this  in  the  interest  of  the  party.  And  he  may  do  it  in  the 
interest  of  the  government,  which  must  defray  the  expenses  of  the 
detention  and  custody  of  the  party,  and  of  his  conveyance  to  the 
United  States. 

If  a  crime  be  committed  on  board  an  American  vessel  on  the 
high  seas,  the  ascertainment  of  it,  and  the  security  of  the  person  of 
the  assumed  criminal,  belong  in  the  first  instance  to  the  master.  He 
is  the  legal  superior  of  all  on  board,  and  has  quasi-magisterial  author- 
ity to  maintain  order,  repress  crimes,  and  provide  for  their  ultimate 
punishment  by  law. 

The  received  text-books,  and  the  occasional  adjudications  touch- 
ing this  point,  do  but  imperfectly  exhibit  the  true  extent  and  nature 
of  the  master's  authority  in  this  respect, — in  consequence  of  the  sub- 
ject having  been  too  generally  considered  from  (384)  the  single  point 
of  view  of  the  degree  of  power  of  the  master  in  the  repression 
or  summary  punishment  of  insubordination  on  the  part  of  seamen. 
In  seeking  to  measure  the  degree  and  quality  of  his  coersive  power  in 
this  respect,  they  have  adopted  the  dictum  of  Casaregis,  to  the  effect 
that  he  has  no  jurisdiction  over  the  crew,  but  only  a  sort  of  economic 
authority  or  discipline,  like  that  of  a  parent  over  his  children,  school- 
master over  his  scholars,  and  lord  over  his  slaves  or  servants.  (Disc. 
136,  No.  14.)  But  every  one  sees  that  we  have  here  analogy  only, 
and  that  analogy  confined  to  the  single  fact  of  the  chastisement  of  a 
seaman,  an  analogy  even  there  which  in  some  respects  goes  too  far, 
and  in  others  not  far  enough.  (Perkins'  Abbott  on  Shipping,  p. 
234,  note.)  Accordingly,  when  the  case  in  hand  has  appeared  to  be 
one  of  the  excess  of  authority,  courts  are  prone  to  deny  that  his  power 
is  co-extensive  with  the  paternal  power.  (Barger  v.  Little,  Ware's 
Rep.  p.  506.)  Then,  again,  if  the  case  be  one  of  justifiable  severity  by 
the  master,  the  court  has  to  look  beyond  the  range  of  a  father's  or 
schoolmaster's  power  for  his  justification.  (United  States  v.  Hunt, 
ii  Story's  R.  p.  120.)  So  that,  one  learned  judge,  while  properly 
denying  to  the  master  any  judicial  authority,  and  saying  that  he  is 
no  praef edits  morum,  quotes,  in  the  next  breath,  for  approbation,  the 
saying  that  he  has  power  of  discipline  pro  corrigenda  male  morata 

579 


Vol.  VIII,  p.  380  (GUSHING) 

vita.  And  another  learned  judge,  with  similar  doubts  as  to  the  sup- 
position of  the  master's  authority  being  military  in  any  sort,  yet  con- 
cedes that  it  is  "of  a  peculiar  character,  and  draAMi  from  the  usages, 
and  customs,  and  necessities  of  the  maritime  naval  service."  In  all 
these  speculations,  the  courts  appear  to  have  disregarded  that  most 
necessary  of  all  necessities,  the  police  authority  of  the  master,  as  il- 
lustrated in  the  condition  of  things  on  board  of  a  ship  engaged  in 
the  transportation  of  passengers,  and  especially  emigrants  in  large 
bodies.  In  such  ships,  it  becomes  plain  that  the  master  is  neither  a 
parent  nor  a  pedagogue,  but  the  only  possible  present  representation 
of  the  public  authority  of  his  country. 

Our  law  books  conunonly  quote,  from  the  Notabilia  of  Roccus, 
a  dictum  on  this  point  which  Roccus  himself  quotes  from  D'Juan  de 
Hevia  Bolaiios,  to  wit,  the  statement  that  "the  mas-  (385)  ter  of  the 
ship  has  power  to  confine  offenders  in  the  vessel,  even  though  they  are 
not  mariners,  for  the  purpose  of  delivering  them  up  to  the  competent 
authority  of  the  territorj-  or  district  nearest  to  the  place  where  the 
offence  was  committed.  Or  he  may  confine  them  in  the  port  where  the 
ship  is  to  be  unladen,  in  order  to  have  them  punished."  (IngersoU's 
Roccus,  p.  21.)     And  this  all  admit  to  be  a  good  law. 

The  dictum  itself  is  founded  by  Bolanos  on  the  text  of  the  Par- 
tidas.  (Part  5  ta,  tit.  8  &  9.)  The  proposition  in  Bolanos  is  stronger 
than  it  appears  in  Roccus:  for  the  former  says  that  the  master  may 
arrest  any  delinquent,  aunque  sea  clerigo,  that  is,  not  amendable  to 
the  secular  jurisdiction.  (Curia  Felipica,  lib,  iii,  c.  4.)  And  Domin- 
guez,  in  commenting  on  this  passage,  refers  to  numerous  authors  who 
have  discussed  and  settled  the  power  of  the  master  in  this  respect. 
(Ilustracion  a  la  Curia  Felipica,  torn,  ii,  p.  110.) 

And  it  may  happen  that  the  power  of  the  master  will,  by  force  of 
the  same  circumstances,  devolve  on  the  mate ;  as  if  the  master  became 
insane,  or  shall  himself  commit  a  crime  of  aggravated  character. 
(Ibid.) 

Now,  the  authority  of  the  consul  in  the  premises  necessarily  fol- 
lows from  that  of  the  master;  for  if  the  offence  be  committed  in  port, 
or  so  soon  as  the  ship  arrives  in  port,  it  becomes  the  duty  of  the  con- 
sul, by  express  i)rovision  of  the  statute,  to  receive  and  hear  the  com- 
plaints of  the  ship's  company,  (Act  of  July  20,  1840,  §  16.)  And, 
on  the  other  hand,  it  is  the  right  of  the  master,  in  such  circumstances, 
to  demand  the  assistance  of  the  consul,  who  is  to  advise,  aid,  and,  if 
need  be,  direct,  the  master  as  to  the  further  detention  of  the  party 
as  a  criminal,  and  his  immediate  transmission  to  his  country.  This 
thing  the  consul  does  officially,  in  the  exercise  of  his  ministerial  auth- 

580 


OPINIONS  OP  ATTORNEYS  GENERAL 

ority,  (not  judicial,)  and  as  the  local  ministerial  agent  of  the  United 
States. 

If  the  offence  be  committed  in  port,  and  the  local  authorities  do 
not  take  jurisdiction,  then,  also,  the  consul  is  to  advise  and  aid  the 
master  in  the  disposition  of  the  party,  in  order  to  his  transmission  to 
the  United  States  for  trial.  In  neither  case  does  the  consul  possess 
any  criminal  jurisdic-  (386)  tion.  His  obligations  and  his  powers  go 
no  further  than  to  inquire,  in  order  to  decide  what  his  duty  is  in  the 
given  case, — to  take  evidence  of  the  facts, — to  collect  and  see  to  the 
preservation  of  documents  and  material  proofs, — to  draw  up  a  state- 
ment of  the  facts  to  be  reported  to  his  government, — and  if,  in  his 
judgment,  the  facts  require  it,  to  see  to  the  further  detention  of  the 
party,  and  his  transportation  in  custody  to  the  United  States.  (Con- 
sular Regulations,  Nos.  308-315.) 

These  particulars  of  the  duty  of  consuls  are  not  expressly  de- 
fined by  statute.  But  they  belong  to  the  very  function  of  consuls  by 
the  law  of  nations,  and  by  the  general  practice  of  Christendom.  (De 
Clercq  et  de  Vallat,  Guide  Pratique,  p.  356,  366.)  And,  in  thus  de- 
taining criminals,  the  consul  does  not  usurp  any  judicial  authority. 
He  has  no  judicial  authority.  His  acts  are  ministerial  only,  such 
as  any  ministerial  officer  may  lawfully  perform,  and  which  he  per- 
forms, of  course,  as  the  only  ministerial  officer  of  competent  authority 
at  hand  invested  with  general  power  as  such. 

Nay,  in  the  absence  of  a  magistrate,  any  private  person  may 
arrest  a  criminal  for  the  purpose  of  taking  him  before  a  magistrate, 
(ii  Hawk.  P.  C,  ch.  12.)  And  to  this  question  it  is  immaterial  how 
far  off  the  magistrate  may  be.  The  maritime  jurisdiction  of  the 
courts  of  the  United  States  is  independent  of  space.  It  is  just  as  per- 
fect in  the  remotest  seas  of  Europe  or  Asia  as  it  is  in  sight  of  the 
harbor  of  Boston  or  New  York. 

The  foregoing  remarks  apply  more  especially  to  the  case  of  con- 
suls in  the  governments  of  Christendom  having  treaty  relations  with 
the  United  States.  Those  of  China  and  Turkey  stand  on  their  pecu- 
liar footing.  As  to  those  in  other  countries,  it  were  to  be  wished  that 
some  legislative  provision  existed  defining  their  power.  While,  in 
those  other  countries,  our  consuls  have  no  power  to  judge,  on  the 
other  hand  we  cannot  recognize  the  local  jurisdiction  as  we  do  in 
Europe  or  America,  or  in  Asiastic  or  African  countries  dependent  on 
Europe.  To  the  ports,  at  least,  of  those  other  countries,  it  would 
seem  that  the  criminal  jurisdiction  of  the  federal  consuls  extends. 
Crimes  committed  on  board  our  ships,  in  such  ports,  are  not  com- 
mitted within  the  jurisdiction  of  any  state  recognized  by  us  as  such. 

581 


Vol.  VIII,  p.  380  (GUSHING) 

(387)  And  parties  committing  crimes  there,  on  shipboard,  may,  in 
my  opinion,  be  detained  by  the  consular  agent  for  remission  to  the 
United  States. 

I  am,  very  respectfully, 

C.  GUSHING. 
Hon.  ^ym.  L.  Marcy,  Secretary  of  State. 


Vol.  VIII,  p.  469  (Gushing) 

RIGHTS  OF  CONSULS 

Foreign  consuls  have  no  right,  on  the  trial  of  a  person  whose  acts  affect  them 
as  accomplices,  to  interpose  by  letter;  but  may  appear  as  witnesses,  or  by  coun- 
sel in  aid  of  the  defense  of  the  party  indicted. 

Attorney  General's  Office, 

September  17,  1855. 

Sir:  I  desire  to  make  a  further  suggestion  in  regard  to  the 
(470)  trial  of  parties  charged  with  recruiting  soldiers  in  the  United 
States  for  the  service  of  the  British  government. 

It  is  known  that  instructions  on  this  subject  were  given  by  that 
government  to  its  officers  in  the  United  States.  "We  are  told  by  Lord 
Clarendon  that  those  officers  had  "stringent  instructions"  so  to  pro- 
ceed as  not  to  violate  the  municipal  law, — that  is,  to  violate  its  spirit, 
but  not  its  letter.  If  so,  the  instructions  themselves  violate  the  sover- 
eign rights  of  the  United  States. 

But,  in  the  mean  time,  every  consul  of  Great  Britain  in  the 
United  States  is,  by  the  avowal  of  his  government,  subject  to  the 
ju.st  suspicion  of  breach  of  law;  while,  apparently,  he  must  either 
have  disobeyed  his  owti  government,  or,  in  obeying  it,  have  abused  his 
consular  functions  by  the  violation  of  his  international  duty  to  the 
United  States. 

In  these  circumstances,  it  is  deemed  highly  necessary  that  the 
British  consul  at  Philadelphia,  or  any  other  officer  of  the  British 
government,  shall  not  be  suffered  to  interfere  in  the  trials,  as  he  at- 
tempted to  do  on  a  previous  occasion ; — that  no  letter  of  his  be  read, 
except  in  the  due  form  of  evidence;  and  that  if  he  have  anything  to 
say,  he  shall  be  put  on  the  stand  by  the  defense,  in  order  that  he  may 
be  fully  cross-examined  by  the  prosecution. 

It  is  clear  that  he  has  no  right,  by  any  rule  of  public  law,  or  of 
international  comity,  to  be  heard  in  the  case  by  the  court,  other  wise 
than  as  a  witness,  whether  enforced  or  volunteer. 

I  have  the  honor  to  be,  very  respectfully, 

G.  GUSHING. 
James  C.  Van  Dyke,  Esq.,  U.  S.  Attorney,  PhUa. 

582 


OPINIONS  OF  ATTORNEYS  GENERAL 

Vol.  VIII,  p.  47G  (Gushing) 

BEITISH  ENLISTMENTS 

Eeport  to  the  president  on  the  legal  questions  involved  in  the  enlistment 
of  troops  by  British  officers  in  the  United  States. 

Attorney  General's  Office, 

May  27,  1856. 
(Extract)  Sir:  I  deem  it  incumbent  on  me  to  bring  to  your 
notice  sundry  passages  in  official  communications  of  the  British  min- 
ister, Mr.  Crampton,  to  his  government,  as  they  appear  in  the 
"Papers  relative  to  Recruiting  in  the  United  States,"  recently  pre- 
sented to  parliament,  which  contain  palpable  errors  of  statement 
touching  me  personally  or  my  official  action  as  attorney  general. 

1.  In  a  letter  to  the  Earl  of  Clarendon,  of  the  19th  of  November, 
1855,  in  commenting  on  Mr.  Marcy's  letter  to  Mr.  Buchanan,  of  the 
15th  of  July,  1855,  Mr.  Crampton  assumes  that  the  British  consuls, 
implicated  in  illegal  enlistments  in  the  United  States,  were  prevented, 
by  the  tenor  of  my  instructions  to  the  district  attorney  of  Philadel- 
phia, from  testifying  to  their  alleged  innocence.  (Papers  ut  supra, 
p.  128.) 

That  statement  is  not  true. 

The  district  attorney  was  instructed  to  object  to  any  attempt  of 
the  British  consul  to  do  what  he  had  undertaken  on  a  previous  occa- 
sion to  do,  that  it,  to  interfere  in  the  trials  by  officious  letters  written 
for  the  purpose ;  but,  instead  of  being  forbidden,  it  was  expressly  sug- 
gested, that  he  should  appear  as  a  witness. 

It  is  obvious,  that  it  cannot  be  admitted  that  a  person,  who  deems 
himself  inculpated  by  judicial  proceedings,  be  allowed  to  interpose  in 
the  trial  by  mere  letters  of  denial  or  ex  parte  explanation. 

He  has  no  right,  in  law  or  courtesy,  to  any  such  privilege.  If 
he  desires  to  be  heard,  he  must  appear  in  a  legal  manner,  that  is  to 
to  say,  as  a  witness,  in  order  that  he  may  be  examined  so  as  to  elicit 
the  truth. 

The  British  consul  at  Philadelphia  might  have  volunteered  as  a 
witness  in  the  case  of  Hertz,  if  he  had  seen  fit.  He  ought  to  have 
done  so,  if  his  testimony,  lawfully  given,  could  have  (477)  proved 
anything  material,  either  to  the  prosecution  or  the  defense. 

There  was  nothing  extraordinary  in  this  particular  matter,  ex- 
cept the  presumption  of  a  foreign  consul,  in  supposing  that  he  might 
interfere  by  volunteer  letters,  to  affect  the  course  of  criminal  justice 
in  the  United  States. 

2.  In  Mr.  Crampton 's  letter  to  the  Earl  of  Clarendon,  of  Nov- 

583 


Vol.  VIII,  p.  476  (GUSHING) 

ember  27,  1855,  it  is  alleged  that  the  proceedings  against  Hertz  and 
others,  in  Philadelphia,  were  instituted,  not  against  the  persons  who 
were  ostensibly  arraigned,  but  against  the  British  diplomatic  and 
consular  agents  in  the  United  States.     (Ubi  supra,  p.  134.) 

That  is  incorrect.  The  proceedings  were  comme7iced  in  March, 
1855,  when  no  suspicion  was  entertained,  by  this  government,  of  the 
relation  of  ^Mr.  Crampton  and  of  British  consuls  to  the  illegal  acts  in 
question.  It  is  true,  however,  that  among  the  objects  expected  from, 
and  accomplished  by,  the  trial,  was  the  legal  ascertainment  of  facts 
alike  important  to  the  British  government  and  that  of  the  United 
States. 

3.  In  the  same  letter,  JNIr.  Crampton  says  that,  at  the  time  of 
the  trial  referred  to,  (September  21,  1855,)  "the  United  States  gov- 
ernment must  have  known  that  all  recruitment,  legal  or  illegal,  had 
been  put  to  a  stop  to  several  weeks  before."     (Ubi  supra,  p.  134.) 

That  is  a  mistake.  This  government  knew  nothing  on  that  point, 
at  that  time,  except  what  Lord  Clarendon  had  said  in  his  letter  to 
Mr.  Buchanan  of  July  16,  1855,  namely,  that  the  British  government 
had  sent  orders  to  put  an  end  to  "all  proceedings  for  enlistment." 

Lord  Clarendon  did  not  mention  when  the  orders  were  sent; 
nor  does  the  context  of  his  letter  show  whether  the  orders  spoken  of 
applied  to  the  United  States  only,  or  also  to  British  America.  At 
wliat  time  those  orders  took  effect,  to  whom  sent,  and  their  exact  scope, 
did  not  then  appear  of  public  notoriety,  and  was  never  communicated 
to  this  government. 

This  government  well  knew  that  recruitments  took  place  in 
August ;  it  did  not  know  that  they  had  ceased  in  August.  So  soon  as 
it  had  satisfactory  information  of  their  cessation,  in-  (478)  structions 
were  given  to  desist  from  all  further  judicial  proceedings,  except 
against  official  agents  of  the  British  government.  (Letter  of  the  at- 
torney general  to  Mr.  McKeon,  of  October  20,  1855,  ubi  supra,  p.  129.) 

4.  In  the  same  letter  Mr.  Crampton  says  that  the  United  States 
government  must  have  known  that  the  proceedings  of  Hertz  were, 
from  the  moment  he  attempted  to  enter  upon  a  system  of  recruitment, 
disavowed  by  her  majesty's  officers."     (Ubi  supra,  p.  136.) 

This  is  not  so.  This  government  knew  the  contrary  of  what  is 
thus  alleged.  It  knew  that  Mr.  Crampton  had  corresponded  with 
Hertz.  (Ubi  supra,  p.  67.)  It  also  knew  that  Hertz  was  officially 
employed  and  paid  by  Mr.  Howe,  as  the  latter  has  since  declared 
on  oath.     (Ubi  supra,  p.  218.) 

5.  In  his  letter  to  the  Earl  of  Clarendon,  of  March  3,  1856,  Mr. 
Crampton  assumes  that  he  and  the  inculpated  consuls  were  the  real 
parties  defendant,  and  then  proceeds  to  argue  on  the  further  assump- 

584 


OPINIONS  OF  ATTORNEYS  GENERAL 

tion  that  they  were  prohibited  from  appearing  in  their  own  defense. 
(Ubi  supra,  p.  178.) 

I  have  already  commented  upon  and  corrected  the  error  of 
fact  involved  in  these  assumptions,  in  so  far  as  regards  the  consul. 

As  to  Mr.  Crampton,  he  also  could  have  offered  his  testimony, 
if  he  had  pleased.  If  he  suggest  that  considerations  of  diplomatic 
dignity  would  prevent  this,  the  reply  is,  that  considerations  of  dip- 
lomatic dignity  should  have  prevented  his  engaging,  in  association 
with  persons  now  said  by  him  to  be  of  equivocal  character,  in  the  sys- 
tematic violation  or  evasion,  for  a  period  of  nearly  six  months,  of  the 
municipal  law  of  the  United  States. 

He  well  knew,  in  April,  that  persons,  in  the  actual  pay  of  his 
government,  were  under  prosecution  in  Boston,  New  York,  and  Phila- 
delphia, and  should  then  have  anticipated  that  his  name  would  event- 
ually come  in  question  before  the  courts  of  justice;  all  the  personal 
annoyance,  and  other  inconveniences  of  which  he  encountered  volun- 
tarily, and  with  no  right  now  to  complain  of  the  consequences. 

For  the  rest,  the  law  of  nations,  it  is  true,  exempts  Mr.  (479) 
Crampton  from  trial  for  misdemeanor;  but  it  is  idle  for  him  to  sup- 
pose that  his  hired  agents  in  the  commission  of  the  misdemeanor,  who 
are  not  themselves  invested  with  diplomatic  privilege,  were  to  have 
it  accorded  to  them  otherwise,  or  that  his  participation  in  the  acts  per- 
petrated should  not  come  under  observation  in  a  court  of  justice, 
without  his  being  able  to  appear  directly  as  defendant  on  the  record. 

6.  In  the  same  letter,  Mr.  Crampton  repeats  the  erroneous 
statement  that  ' '  the  consuls  were  not  allowed  to  be  heard,  on  the  trial 
of  Hertz."    (Ut  supra,  p.  179.) 

I  have  already  remarked  on  this  point.     I  add,  that  on  the  trial 

of  Wagner  in  New  York,  pains  were  taken  to  obtain  the  evidence  of 

the  active  official  agent  of  enlistment  there.  Consul  Barclay 's  deputy, 

Mr.  Stanley,  but  without  success. 

****  *  **** 

I  have  the  honor  to  be,  very  respectfully, 

C.  CUSHING. 
To  the  President. 


Vol.   IX,  p.  96    (Black) 

SPANISH  DESERTERS 

1.  Under  the  treaty  with  Spain,  and  the  act  of  congress  which  was  made  to 
carry  it  out,  the  apprehension  and  delivery  of  a  seaman,  who  ia  alleged  to  be  a 
deserter  from  a  Spanish  ship,  is  a  judicial  duty,  and  the  state  department  cannot 
change  what  a  judge  has  done. 

585 


Vol.  IX,  p.  96  (BLACK) 

2.  To  prove  the  fact  of  desertion,  the  treaty  requires  the  exhibition  of  the 
ship's  roll,  with  the  name  of  the  deserter  upon  it,  and  this  is  not  met  by  the 
mere  certificate  of  a  Spanish  consul. 

Attorney  General's  Office, 

September  24,  1857. 

Sir :  I  have  read  the  note  addressed  to  you  by  the  Spanish  min- 
ister on  the  case  of  ]\Ianuel  Castro,  a  deserter  from  the  Spanish 
schooner  San  Juan  Baptista,  at  Key  "West. 

From  that  note,  and  from  other  papers  on  the  same  subject 
which  you  have  sent  me,  it  appears  that  the  deserter  was  arrested 
after  the  vessel  had  put  to  sea,  on  a  warrant  issued  by  a  justice  of 
the  peace.  But  he  was  discharged  by  a  state  judge  on  a  writ  of 
habeas  corpus.  The  Spanish  consul  then  applied  to  the  district  judge 
of  the  United  States  for  another  warrant,  which  was  refused.  This 
is  the  subject  of  complaint.  You  ask  whether  it  is  well  founded,  and 
what  can  be  done  to  prevent  a  repetition  of  such  grievances. 

Under  the  treaty  with  Spain,  and  the  act  of  congress  which  was 
made  to  carry  out  that  and  other  treaties  of  the  same  kind,  the  ap- 
prehension and  delivery  of  a  deserter  is  a  judicial  duty.  It  must  be 
performed  according  to  the  judgment  and  conscience  of  those  to 
whom  it  is  assigned.  The  judges  are  sworn  to  administer  it  faith- 
fully according  to  the  best  of  their  learning  and  ability;  and  that  is 
all  that  can  be  demanded  of  them.  You  cannot  require  them  to  de- 
cide a  given  question  in  a  particular  way;  much  less  can  you  reverse 
a  sentence  already  pronounced. 

When  a  cause  is  pending  before  the  courts  in  which  our  o^vn  or 
a  foreign  government  has  a  special  interest,  the  president  will  al- 
ways see  that  the  facts  and  the  law  shall  (97)  be  properly  presented 
by  competent  counsel,  and  sometimes  he  prescribes  what  line  of  argu- 
ment shall  be  used.  But  the  judges  must  be  left  to  act  upon  their 
own  separate  possibility.  Inasmuch,  therefore,  as  this  is  a  judicial 
duty,  you  cannot  change  what  has  been  done,  even  if  you  are  sure 
that  it  was  done  erroneously.  Nor  do  I  see  what  measures  you  can 
take  which  will  be  absolutely  sure  to  prevent  the  same  judge  or  an- 
other from  doing  the  like  hereafter. 

But  I  think  the  decision  was  right.  The  treaty  requires  that 
in  such  a  case  the  Spanish  consul  in  American  ports  shall  exhibit  the 
ship's  roll,  and  the  name  of  the  deserter  must  appear  in  it  before  he 
can  be  arrested,  held  in  custody  ,  or  delivered.  The  act  of  congress 
C4  Stat,  at  Large.  360)  declares  that  the  arrest  may  be  made  on  proof 
by  exhibition  of  the  register  of  the  vessel,  ship's  roll,  or  other  official 
document.     Here  there  was  no  exhibition  of  the  roll,  or  any  other 

586 


OPINIONS  OF  ATTORNEYS  GENERAL 

corresponding  document  which  contained  the  names  of  the  ship's 
crew.  The  consul  produced  an  extract  from  the  roll,  certified  by 
himself,  but  he  did  not  exhibit  the  original  roll  carried  by  the  vessel, 
as  the  treaty  in  plain  terms  required  him  to  do. 

It  might  be  convenient,  in  cases  like  this,  to  dispense  with  the 
production  of  the  original  document,  and  let  the  rights  of  the  person 
claimed  as  a  deserter  depend  on  the  mere  certificate  of  a  consul;  but 
a  written  compact  between  two  nations  is  not  to  be  set  aside  for  a 
shade  or  two  of  convenience  more  or  less.  The  law  is  so  written,  and 
that  is  a  sufficient  answer  to  all  that  can  be  said  against  this  pro- 
ceeding. 

I  am,  with  great  respect,  yours,  &c., 

J.  S.  BLACK. 
Hon.  Lewis  Cass,  Secretary  of  State. 


Vol.  IX,  p.  383   (Black) 

TREATY  BETWEEN  PERU  AND  THE  UNITED  STATES 

Under  the  treaty  of  1851  with  Peru,  the  United  States  are  not  bound  to  pay 
a  consul  of  the  Peruvian  government  the  value  of  property  belonging  to  a  de- 
ceased Peruvian,  on  whose  estate  the  consul  was  entitled  to  administer,  which  may 
have  been  unjustly  detained  and  administered  by  a  local  public  administrator. 

Attorney  General's  Office, 
A^igust  2,  1859. 
Sir:  Juan  del  Carmen  Verjel,  a  Peruvian  citizen,  died  intes- 
tate, on  board  of  the  steamer  Empire  City,  on  her  passage  from  New 
York  to  the  Pacific,  in  May,  1858.  Some  personal  property  which 
he  had  with  him  at  the  time  of  his  death  was  brought  back  to  New 
York  by  the  Pacific  Steamship  Company,  and  deposited  with  the  pub- 
lic administrator.  By  the  39th  article  of  the  treaty  of  1851  between 
Peru  and  United  States,  the  Peruvian  consul  at  New  York  was,  ex 
officio,  the  administrator  of  his  deceased  countryman,  and  therefore 
entitled  to  the  possession  of  the  goods  which  the  public  administrator 
took  and  administered.  The  consul,  therefore,  had  a  right  of  action 
to  recover  the  goods  or  their  value.  But,  instead  of  bringing  a  suit, 
he  applied  through  the  state  department  for  compensation  out  of  the 
federal  treasury.  I  think  you  are  bound  to  dismiss  his  application. 
The  treaty  makes  no  promise  that  the  government  of  the  United 
States  will  put  the  personal  property  of  a  deceased  Peruvian  into  the 
hands  of  the  consul  and  keep  it  there,  or  else  pay  him  the  price  of  it. 
It  secures  to  him  simply  the  legal  rights  of  an  administrator,  which 
consist,  among  other  things,  of  authority  to  sue  for  goods  of  his  de- 
cedent, if  they  are  unlawfully  taken  or  detained  from  him. 

587 


Vol.  IX,  p.  383  (BLACK) 

I  repeat,  that  the  act  of  the  steamship  company,  and  of  the  pub- 
lie  administrator,  in  detaining  the  goods  of  the  decedent  from  the 
Peruvian  consul,  was  imlavvful,  and  a  wrong  which  may  be  justly 
complained  of.  The  only  error  of  the  consul  and  the  minister  con- 
sists in  seeking  redress  (384)  where  there  is  no  authority  to  furnish  it, 
and  in  refusing  the  justice  which  the  judicial  authorities  would  have 
given  them  for  the  asking.  It  appears  that  the  district  attorney  of 
the  United  States,  in  pursuance  of  your  instructions,  tendered  his  ser- 
vices to  institute  and  carry  on  the  proper  proceedings,  and  that  the 
minister  distinctly  refused  to  allow  the  bringing  of  an  action.  If 
this  refusal  be  persisted  in,  I  know  not  what  more  we  can  do  In 
this  case. 

I  am,  very  respectfully,  yours,  &c., 

J.  S.  BLACK. 
Hon.  Lewis  Cass,  Secretary  of  State. 


Vol.  IX,  p.  384   (Black) 
POWER  OF  AMERICAN  CONSULS 

1.  An  American  consul,  under  the  act  of  February  28,  1803,  has  no  authority, 
by  withholdinfi;  a  ship  's  papers,  to  compel  payment  of  demands  for  which  suit  has 
been  brought  by  a  creditor,  after  her  release  on  bond  by  the  court. 

2.  Such  consul,  under  the  28th  section  of  the  act  of  August  18,  1856,  has 
authority  to  detain  the  papers  of  a  ship  to  enforce  only  the  payment  of  wagea 
in  certain  cases  and  consular  fees;  but  he  has  not  a  general  power  of  deciding 
upon  all  manner  of  disputed  claims  against  American  vessels. 

3.  Such  consul  may  recover  the  penalties  incurred  by  the  master  of  a  vessel 
for  neglecting  to  deposit  his  papers  in  a  court  of  competent  jurisdiction,  but  he 
has  no  right  to  enforce  otherwise  the  payment  of  the  penalties. 

Attorney  General's  Office, 
August  6,  1859. 
Sir:  I  have  considered  the  questions  proposed  by  the  American 
vice-consul  at  Valparaiso,  which  you  have  referred  to  me,  arising  out 
of  his  official  proceedings  in  the  case  of  the  steamer  Independence,  of 
New  York.  On  the  25th  of  March,  1859,  this  vessel  arrived  at  Val- 
paraiso, and  her  papers  were  deposited  at  the  American  consulate. 
She  had  previously  arrived  twice  at  that  port  and  departed  from  it 
without  depositing  her  register,  as  required  by  the  act  of  28th  Feb- 
ruary, 1803.  On  the  30th  of  March  several  claims  against  the  steamer 
were  on  file  at  the  American  (385)  consulate.  They  were  for  con- 
sul's fees,  for  coal,  for  lighterage,  for  wages,  and  for  an  agent's  ser- 
vices and  expenses.  The  vice  consul  demanded  the  payment  of 
these  claims  before  returning  the  register,  and  also  the  payment  of  one 
thousand  dollars  penalties  for  the  two  previous  violations  of  the  act 

588 


OPINIONS  OF  ATTORNEYS  GENERAL 

of  1803.  After  much  dispute  the  attorneys  of  the  owner  paid  some 
of  these  demands  under  protest,  and  gave  bond  for  the  remainder, 
and  the  papers  were  given  up. 

The  propositions  submitted  by  the  vice-consul  are  all  embraced 
in  the  single  question  whether  he  was  right.  I  think  he  was  in  error 
in  two  or  three  respects.  To  point  out  these  will  be  the  clearest  and 
easiest  way  to  answer  your  inquiry. 

1.  Some  of  the  claims  against  the  steamer  were  disputed.  Suits 
had  been  brought  for  them  and  security  had  been  entered.  The  vice- 
consul  had  notice  of  this ;  and  he  had,  therefore,  no  right  to  compel  the 
payment  of  the  demands  by  withholding  the  ship's  papers.  After  a 
vessel  has  been  attached  by  a  creditor,  and  has  been  released  on  bond, 
he  cannot  demand  that  the  consul  shall  detain  it.  To  do  so  would  be 
vexatious,  and  perhaps  deprive  the  owner  of  a  just  defense. 

2.  But  nearly  all  the  claims  against  this  steamer  were  of  a  class 
over  w^hich  the  vice-consul  had  no  jurisdiction.  His  right  to  enforce 
payment  of  them  is  claimed  under  that  clause  of  the  28th  section  of 
the  act  of  August  18,  1856,  (11  Stats,  at  Large,  63,)  which  provides 
that  "all  consular  officers  are  hereby  authorized  and  required  to  re- 
tain in  their  possession  all  the  papers  of  such  ships  and  vessels  which 
shall  be  deposited  with  them  as  directed  by  law  ,  till  payment  shall 
be  made  of  all  demands  and  wages  on  account  of  such  ships  and 
vessels. ' ' 

In  the  book  of  consular  regulations,  published  in  1856,  this 
clause  is  inserted,  apart  from  the  remainder  of  the  section,  and  the 
word  ' '  such ' '  is  omitted.  I  think  it  should  be  construed  in  connection 
with  the  rest  of  the  section  in  which  it  occurs,  and  with  other  parts 
of  the  same  act.  It  refers  to  the  demands  and  wages  of  which  cog- 
nizance had  (386)  been  given  to  consuls.  It  gives  them  no  new  juris- 
diction, but  simply  provides  a  means  of  enforcing  that  which  they 
already  had.  They  can  retain  the  papers,  to  compel  the  payment  of 
wages  in  certain  cases  and  consular  fees;  but  they  do  not  possess  a 
general  power  of  deciding  upon  all  manner  of  disputed  claims  and 
demands  against  American  vessels. 

This  view  of  the  law  does  no  violence  to  its  language.  The 
words  "such  ships  and  vessels"  evidently  refer  to  the  ships  and  ves- 
sels previously  mentioned.  The  terms  "all  demands  and  wages," 
being  used  in  connection,  warrant  the  belief  that  the  former  was  em- 
ployed in  a  limited  sense.  In  its  general  import,  it  includes  wages; 
and  to  construe  it  broadly,  therefore,  makes  the  sentence  redundant. 
These  are  but  slight  grounds  of  construction,  but  they  are  strength- 
ened by  the  more  potent  one,  that  a  grant  of  judicial  power  is  not  to 
be  taken  by  implication,  and  that  it  is  not  to  be  presumed  that  con- 

589 


Vol.  IX,  p.  383  (BLACK) 

gress  intended  to  confer  upon   every  consular  officer  an   authority 
almost  equal  to  that  of  a  court  of  admiralty. 

3.  The  vice  consul  also  exacted  the  penalties  incurred  by  the 
master  of  the  Independence  imder  the  act  of  1803.  But  by  the  terms 
of  that  act  the  penalty  is  "to  be  recovered  by  the  said  consul,  vice- 
consul,  commercial  agent,  or  vice  commercial  agent,  in  his  o\\ti  name, 
for  the  benefit  of  the  United  States,  in  any  court  of  competent  juris- 
diction." The  law  makes  the  consul  the  party  to  bring  the  suit,  not 
the  judge  to  decide  it.  In  the  case  in  hand  the  vice  consul  demanded 
the  penalty,  decreed  it  to  be  due,  and  enforced  its  payment. 

4.  The  facts  concerning  the  engineer's  claim  for  wages  are  not 
very  clearly  stated.  It  does  not  appear  upon  what  voyage  they  were 
earned.     I  will,  therefore,  intimate  no  opinion  about  it. 

Yours,  very  respectfully, 

J.  S.  BLACK. 
Hon.  Letins  Cass,  Secretary  of  State. 


Vol.  IX.  p.  426   (Black) 

DETENTION  OF  PAPEES  OF  A  SHIP  IN  A  FOREIGN  PORT 

An  American  consul  in  a  foreign  port  has  no  power  to  retain  the  papers  of 
vessels  which  he  may  suspect  are  destined  for  the  slave  trade. 

Attorney  General's  Office, 
May  3,  1860. 
Sir :  There  is  no  statute  which  requires  an  American  consul  in  a 
foreign  port  to  retain  the  papers  of  vessels  which  he  may  suspect  are 
destined  for  the  slave  trade.  (427)  If  this  power  be  not  given  by 
law,  the  want  of  it  cannot  be  supplied  by  departmental  regulation. 
When  congress  enumerated  the  grounds  upon  which  a  consul  might 
detain  the  papers  of  a  ship  in  a  foreign  port,  this  was  omitted,  no 
doubt  for  satisfactory  reasons.  If  the  commander  and  crew  are  bent 
on  a  piratical  voyage,  measures  much  stronger  than  this  will  be  re- 
quired. In  such  a  case  the  vessel  may  be  seized  and  sent  into  the 
United  States  for  such  proceedings  as  will  not  only  break  up  the 
voyage,  but  condemn  the  vessel  and  punish  the  crew  and  officers  as 
criminals.  The  naked  right  to  detain  ves.sels  would  be  of  little  avail 
without  the  presence  of  some  naval  force  to  carry  it  into  effect,  and 
when  such  naval  force  is  present,  the  commander  can  do  all  that  is 
necessary  under  exi.sting  laws  without  any  warrant  from  a  consular 
officer. 

Very  respectfully, 

J.  S.  BLACK. 
Hon.  Levis  Cass,  Secretary  of  State. 

590 


OPINIONS  OF  ATTORNEYS  GENERAL 

Vol.  IX,  p.  441    (Black) 
CONSULAR    FEES 

1.  No  more  than  fifty  cents  can  be  charged  for  certifying  invoices,  and  for 
certifying  the  place  of  growth  or  production  of  goods  made  duty  free  by  the  reci- 
procity treaty  with  Great  Britain,  although  such  certificate  naay  be  accompanied 
by  an  attestation  of  the  official  character  of  a  magistrate,  and  of  the  value  ol 
the  goods. 

2.  Consuls,  as  well  as  consular  officers  and  agents,  are  subject  to  this  re- 
striction. 

3.  It  applies  to  all  the  British  North  American  Provinces  included  within  the 
reciprocity  treaty. 

Attorney  General's  OflEice, 
July  16,  1860. 

Sir :  I  have  considered  the  questions  which  you  have  referred  to 
me  in  relation  to  consular  fees  in  certain  cases. 

The  third  section  of  the  act  of  March  3,  1859,  making  appro- 
priations for  diplomatic  and  consular  expenses,  provides: 

"That  the  fees  for  certifying  invoices,  and  for  certifying  the 
place  of  growth  or  production  of  goods  made  duty  free  by  the  reci- 
procity treaty,  to  be  charged  by  the  consul  general  for  the  British 
North  American  Provinces,  and  subordinate  consular  officers  and 
agents  in  said  provinces,  shall  be  fifty  cents  for  each  certificate, 
and  no  more,"  (11  Stats,  at  Large,  404.) 

On  referring  to  the  forms  prescribed  by  the  secretary  of  the 
treasury  which  were  in  use  at  the  time  of  the  passage  of  this  act, 
and  which  are  still  employed,  it  appears  that  the  consular  certificate 
to  an  invoice  is  based  upon  an  affidavit  made  by  the  shipper  of  the 
goods,  either  before  the  consular  officer  himself,  or  before  some  local 
magistrate.  When  the  latter  course  is  pursued,  the  consular  cer- 
tificate to  the  (442)  invoice  includes  an  attestation  of  the  official  char- 
acter of  the  person  who  administered  the  oath.  By  the  established 
tariff  of  fees,  a  consular  officer  is  entitled  to  two  dollars  ''for  au- 
thenticating the  signature  of  a  governor,  judge,  notary  public,  or 
other  officers,"  and  it  is  contended  that,  notwithstanding  the  act  of 
1859,  he  may  demand  two  dollars  for  that  portion  of  the  certificate 
to  the  invoice  which  attests  the  signature  of  the  local  magistrate.  But 
this  position  cannot  be  maintained.  Where  an  act  of  congress  gives 
a  certain  compensation  for  an  entire  service,  including  several  other 
duties,  for  which,  by  previous  laws  or  regulations,  specific  fees  were 
allowed,  no  more  can  be  charged  for  the  whole  than  the  sum  named 
in  the  latter  statute. 

Before  the  passage  of  the  act  of  1859.  no  person  seems  to  have 
thought  that  the  fee  for  a  consular  certificate  to  an  invoice  was  more 

591 


Vol.  IX,  p.  441  (BLACK) 

than  two  dollars,  although  it  included  a  certificate  of  the  official  char- 
acter of  the  magistrate  before  whom  the  oath  was  made.  But  the 
argument  which  would  make  the  fee  amount  to  two  dollars  or  more 
now,  would  have  made  it  at  least  four  dollars  then.  The  fact  that 
only  two  dollars  were  allowed  for  the  entire  consular  certificate  prior 
to  the  3d  of  ^March,  1859,  is  important  therefore  in  a  double  aspect. 
It  shows  that,  by  a  settled  construction  of  the  tariff  of  fees,  consuls 
were  not  permitted  to  make  separate  charges  for  two  certificates  in- 
ohidcd  in  one ;  and  it  also  warrants  the  conclusion  that  the  fee  of  two 
dollars  for  the  combined  services  was  the  very  thing  which  congress 
intended  to  reduce. 

The  obvious  purpose  of  the  third  section  of  the  act  of  March  3, 
1859,  was  to  diminish  the  costs  of  reciprocial  trade  between  the 
British  North  American  Provinces  and  the  United  States,  in  accord- 
ance with  the  spirit  of  the  treaty.  It  is  our  duty  to  carry  that 
intention  into  effect,  and  not  to  defeat  it  by  an  ingenious  construction 
which  would  practically  maintain  the  original  fee  bill. 

Another  question  which  you  have  referred  to  me  is,  whether  the 
words  "subordinate  consular  officers  and  (443)  agents,"  in  the  act 
of  1859,  include  consuls.  As  defined  in  the  31st  section  of  the  act 
of  August  18.  1856,  they  would  not;  but  the  definitions  therein  es- 
tablished apply  only  to  that  act  and  to  former  acts  which  were  not 
repealed  by  it.  It  would  be  strange  indeed  if  congress  could  declare 
that  a  particular  word  should  have  a  certain  meaning  in  all  future 
legislation.  This  was  not  attempted  by  the  section  referred  to,  as  its 
language  plainly  shows.  We  are  therefore  at  liberty  to  construe  the 
words  "subordinate  consular  officers  and  agents,"  in  the  act  of 
!March  3,  1859,  upon  general  principles,  and  I  think  it  is  clear  that 
they  were  meant  to  embrace  all  consular  officers  below  the  grade  of 
consul  general.  The  subject-matter  of  the  enactment  was  consular 
fees  on  goods  made  duty  free  by  the  reciprocity  treaty.  The  inten- 
tion of  congress  was  to  reduce  those  fees,  and  no  apparent  reason 
exists  why  fees  charged  by  consuls  should  be  excepted.  They  are 
included  by  the  words  of  the  law  according  to  their  common  accepta- 
tion, and  they  are  also  within  the  spirit  and  reason  of  the  statutes. 

I  am  therefore  of  opinion : 

1.  That  no  more  than  fifty  cents  can  be  charged  for  certifying 
invoices,  and  for  certifying  the  place  of  growth  or  production  of  goods 
made  duty  free  by  the  reciprocity  treaty,  although  such  certificate 
may  be  accompanied  by  an  attestation  of  the  official  character  of  a 
magistrate,  and  of  the  value  of  the  goods. 

2.  That  consuls,  as  well  as  other  consular  officers  and  agents, 
are  subject  to  this  restriction. 

592 


OPINIONS  OF  ATTORNEYS  GENERAL 

3.  That  it  applies  to  all  the  British  North  American  Provinces 
included  within  the  reciprocity  treaty. 

Yours,  very  respectfully, 


J.  S.  BLACK. 


Eon.  Lewis  Cass,  Secretary  of  State. 


Vol.  IX,  p.  496  (Black) 

CLAIM  OF  J.  T.  PICKETT 

A  United  States  consul  whose  salary  exceeds  $2,500,  is  entitled  to  be  paid  his 
fees  as  commissioner  for  taking  depositions  in  an  admiralty  proceeding  in  a 
United  States  district  court. 

Attorney  General's  Office, 
October  16,  1860. 

Sir:  It  appears  from  your  letter  of  September  27,  that  J.  T. 
Pickett,  United  States  consul  at  Vera  Cruz,  by  virtue  of  a  commis- 
sion from  the  district  court  of  the  United  States  for  the  district  of 
Louisiana,  took  certain  depositions  in  admiralty  proceedings  against 
the  captured  steamers  "Miramon"  and  "Marquis  de  la  Havana." 
He  now  asks  to  be  paid  his  fees  as  commissioner;  and  the  question 
submitted  is,  whether  he  can  have  them,  it  being  admitted  that  his 
salary  exceeds  $2,500. 

In  the  case  of  Converse  vs.  the  United  States,  (21  Howard,  463,) 
the  supreme  court  held  that  a  collector  of  customs,  who  had  received 
the  maximum  amount  of  his  annual  compensation  as  such,  viz : 
$6,000,  was  nevertheless  entitled  to  commissions  upon  certain  pur- 
chases and  disbursements  made  by  him  under  the  direction  of  the 
secretary  of  the  treasury. 

There  is  no  difference  in  principle  between  the  claim  of  Mr. 
Pickett  and  that  of  the  collector's  representative  in  the  case  which  I 
have  cited.  The  taking  of  these  depositions  was  not  the  duty  of  the 
consul,  as  consul.  The  compensation  of  a  commissioner  is  regulated 
by  law,  and  I  can  see  no  objection  to  its  payment  which  would  not 
have  ap- (497) plied  with  perhaps  greater  force  to  the  payment  of 
commissions  to  a  collector  who  had  received  the  full  amount  of  his 
official  compensation.  I  am  free  to  admit,  that  the  views  of  a  majority 
of  the  judges  upon  this  point  are  contrary  to  my  own  opinion,  but 
nevertheless  I  cannot  advise  any  action  which  will  bring  the  ex- 
ecutive and  judicial  authorities  of  the  government  into  hostile  col- 
lision. 

Very  respectfully,  yours,  &c., 

J.  S.  BLACK. 
Hon.  Jacob  Thompson,  Secretary  of  the  Interior. 

593 


Vol.  IX,  p.  500  (BLACK) 
Vol.  IX,  p.  500  (Black) 

CASE  OF  THE  CONSUL  AT  HALIFAX 

The  j>enal  proviaions  of  the  seventeenth  section  of  the  diplomatic  and  consular 
act  of  August  18,  1856,  only  apply  to  the  taking  of  greater  fees  than  are  al- 
lowed by  the  act  itself,  and  do  not  therefore  extend  to  the  taking  of  greater  fees 
than  are  allowed  by  the  third  section  of  the  act  of  March  3,  1859. 

Attorney  General's  Office, 
November  22,  1860. 
Sir:  I  have  the  honor  to  say,  in  reply  to  your  letter  of  October 
6th.  that  the  penal  provisions  of  the  seventeenth  section  of  the  diplo- 
matic and  consular  act  of  August  18,  1856  (11  Stats,  at  Large,  58) 
only  apply  to  the  taking  of  greater  fees  than  are  allowed  by  the  act 
itself,  and  do  not  therefore  extend  to  a  taking,  by  a  consul  in  the 
British  North  American  provinces,  of  greater  fees  than  are  allowed 
by  the  third  section  of  the  act  of  March  3,  1859. 

If  the  consul  at  Halifax  has  received  greater  fees  than  were  al- 
lowed by  the  latter  act,  and  still  retains  them  in  his  hands  in  conse- 
quence of  a  notice  not  to  pay  them  into  the  treasury,  he  may  be 
permitted  in  self-defence  to  return  the  excess  over  the  legal  amount  to 
the  proper  parties.  But  beyond  this  the  question  of  his  liability  is  a 
personal  one,  upon  which  it  is  not  the  duty  of  the  government  to 
give  him  advice. 

Very  respectfully,  yours,  &c. 

J.  S.  BLACK. 
Ho7i.  Lewis  Cass,  Secretary  of  State. 


Vol.  IX,  p.  507  (Black) 

CASE  OF  J.  P.  BEOWN 

By  decision  of  the  supreme  court,  a  person  holding  two  compatible  offices  or 
employments  under  the  government  is  not  precluded  from  receiving  the  salaries 
of  both,  by  anything  in  the  general  laws  prohibiting  double  compensation;  but 
the  prohibition  in  those  laws  extends  to  every  case  where  (508)  the  duties  for 
which  extra  compensation  is  claimed  are  performed  without  a  regular  appointment 
authorized  by  law. 

Attorney  General's  Office, 
November  24,  1860. 

Sir:  You  have  submitted  to  me  several  propositions  in  relation 
to  the  compensation  of  J.  P.  Brown,  who  has  occupied  various  diplo- 
matic and  consular  offices  in  Turkey  since  the  year  1855.  It  is  neces- 
sary to  treat  the  items  of  his  claim  in  detail,  for  they  arise  under 
different  acts  of  congress,  and  cannot  all  be  disposed  of  under  one 
principle. 

1.  In  the  first  place,  he  was  appointed  dragoman,  and  held  that 

594 


OPINIONS  OF  ATTORNEYS  GENERAL 

office  from  July  1,  1855,  until  after  the  act  of  1856  took  effect.  Dur- 
ing this  same  time  he  was  also  authorized  by  your  department  to  act 
as  consul.  I  am  disposed  to  regard  him  during  that  period  as  a  vice- 
consul  regularly  appointed.  The  office  was  recognized  in  the  legisla- 
tion which  existed  previously  to  1856,  and  the  appointment  was  one 
which  the  state  department  had  the  right  to  make,  (7  Opin.,  512.) 
According  to  the  decision  of  the  supreme  court  in  Converse  vs.  the 
United  States,  (21  How.,  463,)  a  person  holding  two  compatible  of- 
fices or  employments  under  the  government  is  not  precluded  from  re- 
ceiving the  salaries  of  both  by  anything  in  the  general  laws  prohib- 
iting double  compensation,  and  this  principle  would  appear  to  be  ap- 
plicable to  this  portion  of  Mr.  Brown's  claim. 

2.  On  February  19,  1857,  Mr.  Brown  was  appointed  consul-gen- 
eral. He  also,  from  that  date  until  the  23d  of  September,  1858,  dis- 
charged the  duties  of  secretary  of  legation  and  dragoman.  It  is  very 
clear  that  he  cannot  be  compensated  for  discharging  these  additional 
duties  under  the  ninth  section  of  the  act  of  August  18,  1856,  which 
provides  for  the  case  "when  to  any  diplomatic  office  held  by  any 
person  there  shall  be  superadded  another,"  because  the  office  of  con- 
sul-general which  he  held  was  not  a  diplomatic  one.  Nor  do  I  think 
that  the  performance  of  these  additional  duties  will  entitle  him  to 
compensation  under  the  decision  of  the  court  in  the  case  of  Con- 
(509)  verse  vs.  the  United  States.  Had  he,  in  addition  to  the  office 
of  consul-general,  been  actually  appointed  as  secretary  of  legation 
and  dragoman,  the  case  would  have  been  different.  But  the  act  of 
August  31,  1852,  expressly  declares  that  "no  person  who  holds,  or 
shall  hold,  any  office  under  the  government  of  the  United  States, 
whose  salary,  pay,  or  annual  compensation  shall  amount  to  the  sum 
of  two  thousand  five  hundred  dollars,  shall  receive  compensation  for 
performing  the  duties  of  any  other  office. ' '  I  understand  the  prohibi- 
tion to  extend  to  every  case  where  the  duties  for  which  extra  com- 
pensation is  claimed  are  performed  without  a  regular  appointment 
authorized  by  law.  The  case  of  Converse  was  that  of  a  collector, 
whose  compensation,  as  such,  amounted  to  more  than  two  thousand 
five  hundred  dollars,  but  who  also  held  a  regular  appointment  as 
disbursing  officer  of  the  treasury  department,  and  he  was  allowed  also 
to  receive  the  compensation  authorized  by  law  for  such  agency.  I 
shall  of  course  advise  you  to  respect  the  authority  of  that  decision, 
but  I  shall  not  advise  you  to  stretch  it  a  single  inch. 

3.  On  the  23d  September,  1858,  Mr.  Brown  was  appointed  sec- 
retary of  legation  and  dragoman.  For  these  two  appointments  he 
was  entitled  to  receive  three  thousand  dollars  per  annum,  under  the 
first  section  of  the  act  of  August  18,  1856.    It  is  stated  that  after  the 

595 


Vol.  IX,  p.  507  (BLACK) 

23d  September,  1S58,  he  continued  to  as  consul-general,  without  reg- 
ular appointment.  For  reasons  already  stated,  he  is  not  entitled  to 
any  compensation  for  performing  the  duties  of  that  office. 

Very  respectfully,  yours,  &c., 

J.  S.  BLACK. 
Hon.  Lewis  Cass,  Secretary  of  State. 


Vol.  XI,  p.  72  (Bates) 

DEPOSIT  OF  SHIPS'  PAPERS  AT  PORTS  IN  THE  BRITISH  NORTH 
AMERICAN  PROVINCES 

1.  The  master  of  an  American  vessel  sailing  to  or  between  ports  in  the 
British  North  American  Provinces  is  required,  on  arriving  at  any  such  port,  to 
deposit  his  ship 's  papers  with  the  American  consul. 

2.  The  act  of  August  5,  1861,  does  not  change  or  affect  the  duties  of  masteri 
of  American  vessels,  running  regularly  by  weekly  or  monthly  trips,  or  otherwise, 
to  or  between  foreign  ports,  as  imposed  by  the  act  of  February  28,  1803. 

3.  If  an  American  vessel  is  obliged  by  the  law  or  usage  prevailing  at  a  (73) 
foreign  port  to  effect  an  entry,  and  she  does  enter  conformably  to  the  local  law  or 
usage,  her  coming  to  such  foreign  port  amounts  to  an  "  arrival, ' '  within  th« 
meaning  of  the  2d  section  of  the  act  of  February  28,  1803,  independently  of  any 
ulterior  destination  of  the  vessel,  or  the  time  she  may  remain,  or  intend  to  re- 
main, at  such  port,  or  the  particular  business  she  may  transact  there. 

4.  The  fees  receivable  by  a  consul  for  receiving  and  delivering  a  vessel's 
register  and  other  papers,  under  the  act  of  1803,  are  prescribed  by  regulation  of 
the  president. 

5.  The  act  of  August  5,  1861,  was  merely  intended  to  limit  the  amount  of 
fees  payable  annually  to  American  consuls  by  the  masters  of  American  vessels 
running,  by  regular  trips,  to  or  between  foreign  ports. 

Attorney  General's  Office, 
September  7,  1866. 
(78)  (Extract)  The  act  of  1803  affiles  no  fee  to  the  service  which 
a  consul  performs  when  he  receives  and  delivers  a  vessel 's  register  and 
other  papers;  but  that  service  is  made  provision  for  in  the  tariff  of 
con.sular  fees  prescribed  by  the  president  in  accordance  with  the  pro- 
visions of  the  act  of  August  18,  1856,  regulating  the  diplomatic  and 
consular  systems  of  the  United  States.  In  the  schedule  of  consular 
fees  now  in  force  the  consul,  for  the  service  named,  is  entitled  to 
charge  one  cent  on  every  ton  registered  measurement  of  the  vessel,  if 
under  one  thousand,  and  for  every  additional  ton  over  one  thousand, 
one-half  of  one  cent.     (Circular  No.  49,  page  12,  State  Department, 

July,  1864.) 

I  am,  sir,  very  respectfully. 

Your  obedient  servant, 

EDWARD  BATES. 
Hon.  Wm.  H.  Seward,  Secretary  of  State. 

596 


OPINIONS  OF  ATTORNEYS  GENERAL 

Vol.  XI,  p.  508  (Speed) 

JUDICIAL  POWEES   OF   UNITED  STATES   CONSUL   IN  SANDWICH 

ISLANDS 

Attorney  General's  Office, 

June  26,  1866. 

(512)  (Extract)  In  making  this  agreement  in  regard  to  deserters, 
the  two  governments  announced  the  principle,  that  the  question 
whether  the  shipment  of  the  seaman  was  lawful  or  not,  is  one  which 
should  be  remitted  to  the  authorities  of  the  country  to  which  the  ves- 
sel belongs. 

In  the  treaty  with  France,  consuls  are  made  judicial  officers,  and 
given  cognizance  of  all  the  crimes,  misdemeanors,  and  other  matters  of 
difference,  in  relation  to  the  internal  order  of  the  vessel,  which  may 
supervene  between  the  master,  the  officers,  and  the  crew.  The  ques- 
tion whether  a  seaman  is  bound  to  fulfill  the  obligation  imposed  by  the 
shipping-articles  is  certainly  a  matter  of  difference  betwixt  the  mas- 
ter and  one  of  the  crew.  The  fact  must  be  first  determined  that  he  is 
of  the  crew  before  the  consul  can  take  jurisdiction.  Until  the  fact  is 
made  manifest  that  he  is  of  the  crew,  no  rules  in  regard  to  the  internal 
order  of  the  vessel  can  be  enforced.  Upon  the  question  whether  he  is 
not  of  the  crew,  depends  all  the  power  and  authority  of  the  consul. 

To  say  that  the  consul  can  decide  all  questions  concerning  the 
internal  order  of  the  vessel,  except  the  question  whether  the  man  is 
or  not  of  the  crew,  is,  in  effect,  destroying  his  jurisdiction,  making  it 
of  no  value,  by  depriving  him  of  the  power  to  determine  conclusively 
the  very  question  upon  which  all  order  in  the  vessel  can  be  supported. 
Unless  consuls  have  the  power  to  decide,  and  to  decide  without  inter- 
ference from  the  local  courts,  who  compose  the  crew,  it  seems  to  me 
that  all  their  judicial  powers  are  idle.  It  is  a  question  concerning 
the  internal  order  of  the  vessel;  because  upon  it  depends  all  right  to 
impose  and  enforce  rules  for  the  government  of  the  crew,  and  each 
member  of  (513)  the  crew.  If  such  is  not  the  case,  the  consuls  could 
not  rightfully  take  cognizance  of  any  case  until  the  local  courts  had 
passed  upon  the  validity  of  the  shipping-articles,  and  any  and  every 
seaman  could  arrest  the  proceedings  of  the  consuls,  by  pleading  that 
he  had  signed  when  he  was  drunk,  or  had  been  coerced  by  force,  or 
induced  by  fraud  to  do  so, 
•  ••«•***• 

I  am,  sir,  very  respectfully. 

Your  obedient  servant, 

JAMES  SPEED. 
Hon.  Wm.  H.  Seward,  Secretary  of  State. 

597 


Vol.  XII,  p.  1  (STANBERY) 

Vol.  XII.  p.  1  (Stanbery) 
NOTARIAL  POWERS  OF  AMERICAN  CONSULS 

1.  No  law  or  regulation  requires  an  American  consul  to  certify  to  the  of- 
ficial character  and  acts  of  a  foreign  notary  public. 

2.  Consuls  of  the  United  States  are  authorized,  by  the  24th  section  of  the 
act  of  August  18,  1856,  to  perform  any  notarial  acts;  but  a  certificate  as  to  the 
official  character  of  foreign  notary  is  not  a  notarial  act. 

Attorney  General's  Office, 

August  1,  1866. 

Sir:  I  have  received  your  letter  of  the  24th  ultimo,  with  its  en- 
closures. 

It  appears  that  a  power  of  attorney,  purporting  to  be  executed 
at  Liverpool,  by  Edward  Lawrence,  and  acknowledged  before  a  no- 
tary public  at  Liverpool,  has  been  presented  to  Mr.  Dudley,  our  consul 
at  that  place,  for  his  official  certificate,  that  the  notary  public  was 
duly  authorized,  admitted,  and  sworn,  and  that  full  faith  and  credit 
are  due  to  his  notarial  acts.  I\Ir.  Dudley  statas  that  this  power  of  at- 
torney has  relation  to  property  acquired  during  the  war,  in  violation 
of  the  proclamations  of  the  president  and  acts  of  congress,  and  by 
parties  who  were  actively  engaged  in  running  the  blockade.  Under 
these  circumstances,  Mr.  Dudley  had  doubts  as  to  whether  he  ought 
to  verify  the  paper;  and  you  ask  my  opinion  upon  this  question,  and 
whether  you  may  lawfully  instruct  Mr.  Dudley  to  withhold  his  veri- 
fication. I  do  not  find  that  there  is  any  law  or  regulation  which  com- 
pels a  consul  to  give  (2)  such  a  certificate  as  that  in  question,  even  in 
aid  of  a  lawful  purpose.  The  24th  section  of  the  act  to  regulate  the 
diplomatic  and  consular  system  of  the  United  States,  approved  Aug- 
ust 18,  1856,  (11  Stats.,  60,)  authorizes  any  consular  officer  to  per- 
form any  notarial  act  or  acts,  such  as  any  notary  public  is  required 
or  authorized  by  law  to  do  or  perform  within  the  states. 

The  certificate  in  question  does  not  fall  within  the  functions  of 
a  notary;  and  besides,  if  it  were  a  notarial  act,  the  duty  is  not  im- 
perative. The  22d  section  of  the  same  act  vests  the  president  with 
authority  to  give  such  orders  and  instructions  to  all  diplomatic  and 
consular  officers,  touching  the  transaction  of  their  business,  as  may  not 
be  inconsistent  with  the  constitution  or  any  law  of  the  United  States. 
I  am,  therefore,  of  opinion,  that  you  may  lawfully  instruct  the  con- 
sul not  to  verify  this  paper. 

I  am,  sir,  very  respectfully, 

Your  obedient  servant, 

HENRY  STANBERY. 
Hon.  Wm.  H.  Seward,  Secretary  of  State. 

598 


OPINIONS  OF  ATTORNEYS  GENERAL 

Vol.  XII,  p.  97  (Stanbery) 
COMPENSATION  OF  CONSULAE  AGENTS 

1.  The  3d  section  of  the  act  of  June  15,  1866,  is  limited  to  unsalaried  consuls 
and  commercial  agents. 

2.  Consular  agents  are  entitled  to  the  compensation  allowed  them  under  the 
15th  section  of  the  act  of  August  18,  1856. 

3.  The  fees  of  consular  agents,  receivable  under  the  act  of  1856,  are  not  re- 
turnable in  the  accounts  of  the  consuls,  to  whom  they  are  subordinate,  under  the 
act  of  1866. 

4.  The  fees  collected  by  consular  agents,  which  are  payable  under  the  act 
of  1856  to  their  principals,  are  returnable  in  the  accounts  of  such  principals. 

Attorney  General's  Office, 

November  22,  1866. 

Sir:  I  have  considered  the  question  which  you  have  stated  as 
arising  upon  the  3d  section  of  the  act  of  July  25,  1866,  making  ap- 
propriations for  the  consular  and  diplomatic  expenses  of  the  govern- 
ment for  the  year  ending  June  30,  1867,  and  for  other  purposes. 

That  section  provides  as  follows :  ' '  That  all  fees  collected  by  any 
consul  or  commercial  agent  not  mentioned  in  schedule  B  or  C,  by 
any  vice-consul  or  commercial  agent  appointed  to  perform  their  du- 
ties, or  by  any  other  person  in  their  behalf,  shall  be  accounted  for  to 
the  secretary  of  the  treasury  in  the  same  mode  and  manner  as  is 
provided  for  in  section  18  of  the  act  approved  August  18,  1856,  en- 
titled 'An  act  to  regulate  the  diplomatic  and  consular  system  of  the 
United  States.'  And  when  the  fees  so  collected  by  any  such  consul 
or  commercial  agent  amount  to  more  than  $2,500  in  any  one  year, 
over  and  above  expenses  of  office  rent  and  clerk  hire,  to  be  approved 
by  the  secretary  of  state,  of  which  return  shall  be  made  to  the  secre- 
tary of  the  treasury,  the  excess  for  that  year  shall  be  paid  to  the  sec- 
retary of  the  treasury  in  the  mode  provided  for  by  said  act." 

The  first  question  which  you  state  is,  whether,  under  this  provi- 
sion, the  fees  collected  by  a  consular  agent  are  to  be  considered  as  his 
own  fees,  or  as  forming  a  part  of  (98)  those  collected  and  returned  by 
the  principal  consular  officer  by  whom  he  is  nominated  and  to  whom 
he  is  subordinate  ?  I  do  not  think  that  consular  agents  are  embraced 
at  all  by  the  3d  section  of  the  act  of  1866.  Their  compensation  is 
still,  in  my  opinion,  governed  by  section  15  of  the  act  of  August  18, 
1856,  which  entitles  them,  as  compensation  for  their  services,  to  such 
fees  as  they  may  collect  in  pursuance  of  the  provisions  of  that  act, 
or  so  much  thereof  as  shall  be  determined  by  the  president.  (11 
Stats.,  57.)  Consular  agents  are  not  consuls  or  commercial  agents 
within  the  meaning  of  the  laws  regulating  the  consular  system  of  the 
United  States. 

599 


Vol.  XII,  p.  97  (STANBERY) 

They  are  defined  by  section  31  of  the  act  of  1856  as  consular  of- 
ficers, subordinate  to  consuls  and  commercial  agents,  exercising  the 
powers  and  performing  the  duties  within  the  limits  of  their  consulates 
or  commercial  agencies  respectively  at  ports  or  places  different  from 
those  at  which  such  principals  are  located.  Whenever  congress  has 
intended  to  include  them  within  any  provision  of  law,  it  seems  to 
have  mentioned  them  specifically,  or  employed  the  general  expres- 
sion "consular  officers,"  which  describes  subordinate  as  well  as  prin- 
cipal officers  in  the  consular  service. 

Under  the  15th  section  of  the  act  of  1856,  the  fees  of  consular 
agents,  or  so  much  thereof  as  they  are  allowed  to  retain  by  regula- 
tion of  the  president,  appear  to  accure  to  them  in  their  own  right,  and 
not  in  that  of  the  principal  officers  of  the  consulates.  This  provision 
is  not  changed  or  modified  in  any  particular  by  the  law  of  1866.  The 
fees  they  may  be  entitled  to  retain  under  the  act  of  1856  are  not, 
therefore,  to  be  considered  as  forming  any  part  of  those  collected  and 
returned  by  their  principal  consular  officers. 

The  15th  section  of  the  act  of  1856  provides  also  that  "the  prin- 
cipal officer  of  the  consulate  or  commercial  agency  within  which  such 
consular  agent  shall  be  appointed  shall  be  entitled  to  the  residue,  if 
any,  in  addition  to  any  other  compensation  allowed  him  by  this  act 
for  his  services  therein."  I  understand  by  this,  that  if  a  consular 
agent  is  (99)  not  allowed,  by  the  regulation  of  the  president,  to  re- 
tain all  the  fees  he  may  collect,  the  residue,  being  the  difference  be- 
tween all  the  fees  so  collected  and  the  amount  which  the  agent  is 
authorized  to  retain,  is  payable  to  his  principal.  Now,  question  may 
be  made  whether  the  amount  of  fees  thus  received  b}^  such  principal, 
if  an  unsalaried  consul  or  commercial  agent,  is  returnable  in  the 
principal's  account  to  the  secretary  of  the  treasury,  and  constitutes 
part  of  the  fund  out  of  which  the  maximum  of  $2,500  is  allowed  under 
the  act  of  1866?  I  am  of  opinion  that  this  question  must  be  answered 
in  the  affrmative.  I  think  that  each  unsalaried  consul  must  return, 
under  the  act  of  1866,  all  the  fees  collected  by  himself,  or  by  any  one 
on  his  behalf,  and  also  the  amount  of  fees  which  he  may  receive 
through  his  consular  agents. 

But  I  do  not  think  that  any  part  of  the  fees  w^hich  the  agents 
are  authorized  to  retain,  by  regulation  under  the  act  of  1856,  is  re- 
turnable in  the  accounts  of  their  principals. 

It  will  be  perceived  that  no  limitation  of  amount  is  imposed  by 
the  act  of  1856  upon  the  fees  retainable  by  consular  agents.  The  lim- 
itation of  $2,500  is  applicable  only  to  the  compensation  of  the  prin- 
cipal consular  officers  who  are  mentioned  in  the  3d  section  of  the 
statute. 

600 


OPINIONS  OF  ATTORNEYS  GENERAL 

The  second  question  on  which  my  opinion  is  asked  is,  whether  the 
section  referred  to  is  to  be  considered  as  limited  to  unsalaried  princi- 
pal consular  officers? 

There  can  be  no  doubt  that  it  is  so  limited. 

The  consuls  and  commercial  agents  not  mentioned  in  schedule 
B  or  C  are  those  who  receive  no  salaries,  but  are  compensated  by- 
fees,  and  the  restricting  clause  applies  exclusively  also  to  that  class 
of  consuls  and  commercial  agents.  Consular  agents  subordinate  to 
salaried  consuls  are  not  affected  by  the  3d  section  of  the  act  of  1866 
any  more  than  those  attached  to  unsalaried  consulates.  Both  classes 
of  consular  agents  are  still  governed,  in  respect  to  their  compensation, 
by  the  provisions  of  the  general  law  of  1856. 

I  am  of  opinion,  therefore,  as  follows : 

(100)  1st.  That  the  3d  section  of  the  act  of  June  15,  1866,  is 
limited  to  unsalaried  consuls  and  commercial  agents. 

2d.  That  consular  agents,  whether  subordinate  to  salaried  or  un- 
salaried consuls,  are  entitled  to  the  compensation  previously  allowed 
them  under  the  15th  section  of  the  act  of  Augvist  18,  1856. 

3d.  That  the  fees  which  consular  agents,  subordinate  to  un- 
salaried consuls,  may  be  allowed  to  retain  for  their  ovmi  compensation, 
under  the  act  of  1856,  are  not  returnable  in  the  accounts  of  the  con- 
suls under  the  act  of  1866;  and, 

4th.  That  the  amounts  of  fees  collected  by  such  consular  agents, 
which  are  payable  to,  and  received  by  their  principals,  under  the  act 
of  1856,  and  regulations  pursuant  thereto,  are  returnable  in  the  ac- 
counts of  the  principals. 

I  am,  sir,  very  respectfully. 

Your  obedient  servant, 

HENRY  STANBERY. 
Hon.  ^Ym.  H.  Seward,  Secretary  of  State. 


Vol.  XII,  p.  124  (Stanbery) 

CITIZENSHIP  OF  CONSULAE  OFFICEKS 

The  act  of  February  28,  1867,  forbidding  the  payment  of  compensation  to 
any  consul  or  commercial  agent  of  the  United  States  -who  is  not  a  citizen  of  the 
United  States,  does  not  apply  to  deputy  consuls,  consular  agents,  vice  consuls,  and 
vice  commercial  agents. 

Attorney  General's  Office, 
March  6,  1867. 
Sir:  I  have  the  honor  to  say,  in  reply  to  the  inquiry  made  in 
your  letter  of  the  28th  ultimo,  that  I  am  of  opinion  that  the  words 

601 


Vol.  XII,  p.  124  (STANBERY) 

"consul  or  commercial  agent,"  in  the  provision  of  the  act  of  Febru- 
ary' 28,  1S67,  which  forbids  the  payment  of  compensation  to  any  "con- 
sul or  commercial  agent  who  is  not  a  citizen  of  the  United  States, 
native  or  naturalized,"  are  not  to  be  construed  as  including  subordi- 
nate or  substituted  consular  officers,  such  as  "deputy  consuls,"  "con- 
sular agents,"  "vice  consuls,"  and  "vice  commercial  agents."  It 
would  have  been  verv^  easy  for  congress  to  have  declared  its  intention 
to  embrace  such  consular  officers  within  the  prohibition  of  the  act  if 
it  had  meant  to  include  them,  and  the  omission  to  do  so  must  be  taken 
as  strong  evidence  of  an  intention  to  exclude  them. 
I  am,  sir,  very  respectfully, 

Your  obedient  servant, 

HENRY  STANBERY. 
Hon.  Wm.  H.  Seward,  Secretary  of  State. 


Vol.  XII,  p.  463  (Evarts) 

CASE   OF  DESERTERS    FROM   PRUSSIAN   FRIGATE    "NIOBE" 

The  provisions  of  the  treaty  of  May  1,  1828,  between  the  United  States  and 
Pnissia,  for  the  arrest  and  imprisonment  of  deserters  from  public  ships  and 
merchant  vessels  of  the  respective  countries,  applies  to  public  vessels  sailing  under 
the  flag  of  the  North  German  Union  and  deserters  from  such  vessels. 

Attorney  General's  Office, 
August  19,  1868. 
(465)  (Extract)  In  regard  to  naval  vessels  of  the  North 
German  Union,  I  am  clearly  of  opinion  that  they  are  the  ships  of 
war  of  Prussia,  within  the  meaning  of  the  treaty  of  1828,  and  that 
deserters  therefrom  may  be  arrested  by  the  proper  local  authorities  of 
the  United  States,  on  the  application  of  the  proper  consular  officer 
of  the  Union,  pursuant  to  that  treaty.  I  have  referred  incidentally 
to  those  provisions  of  the  constitution  of  the  Union,  which  declare  as 

follows : 

I  am,  sir,  very  respectfully. 

Your  obedient  servant, 

WM.  M.  EVARTS. 
JTo)).  Ww.  77.  Snrarfl,  Secretary  of  State. 


Vol.  XIV,  p.  520  (Williams) 

PROPERTY  OF  DESERTING  SEAMEN 

Four  seamen  deserted  from  an  American  merchant-vessel  in  a  foreign  port, 
leaving  in  the  hands  of  the  master,  besides  what  was  due  them  as  wages,  some 
clothing  and  other  effects,  all  of  which  the  master  delivered  to  the  United  Statea 

602 


OPINIONS  OF  ATTORNEYS  GENERAL 

consul  at  the  port  on  the  demand  of  the  latter.  By  instructions  from  the  state 
department,  the  consul  sold  the  clothing,  &c.,  and  forwarded  the  proceeds  thereof, 
with  the  amount  due  the  seamen  as  wages,  to  that  department.  No  proceeding! 
have  been  instituted  against  the  seamen  for  the  offense  of  desertion.  Upon  the 
question  as  to  what  disposition  should  be  made  by  the  department  of  the  money: 
Advised  that  the  funds,  together  with  a  statement  of  such  facts  touching  the  case 
as  may  be  in  the  possession  of  the  department,  be  transmitted  to  the  circuit  judge 
for  the  district  wherein  the  port  is  in  which  the  vessel  is  owned  or  at  which  her 
voyage  terminated. 

A  consul  has  no  authority  to  demand  and  received  from  the  master  of  a  ves- 
sel the  money  and  effects  belonging  to  a  deserter  from  the  vessel. 

The  steps  which  should  be  taken  by  the  master,  with  reference  to  the  disposi- 
tion of  such  property,  indicated. 

Department  of  Justice, 

January  28,  1875. 

Sir :  From  your  communication  of  the  20th  instant,  I  gather  the 
following  facts,  which  seem  to  be  material  to  a  consideration  of  the 
questions  submitted  by  you: 

In  the  month  of  September,  1874,  four  seamen  deserted  from  the 
bark  Bolivia  at  the  port  of  Rotterdam,  whither  she  had  arrived  after 
a  long  voyage.  The  vessel  was  American,  out  of  the  port  of  Boston. 
Each  of  the  deserters  left  an  amoimt  of  money  due  them  as  wages,  and 
some  clothing  and  other  effects,  in  the  hands  of  the  master  of  the 
vessel.  He  delivered  the  money,  clothes,  &c.,  to  the  United  States 
consul  at  Rotterdam,  at  his  request.  Under  instructions  from  the  de- 
partment of  state,  the  consul  sold  the  clothing  and  other  effects  of  the 
deserting  seamen,  and  forwarded  the  proceeds,  together  with  the 
money  due  them  as  wages,  to  that  department,  which  now  holds  the 
fund.  No  proceeding  has  been  instituted  against  the  men  for  the 
crime  of  desertion,  and  there  has  been  no  judgment  of  forfeiture. 

The  questions  are :  "What  disposition  should  be  made  of  this 
money,  and  what  course  should  be  pursued  in  similar  cases? 

(521)  I  have  first  to  observe  that  the  consul  acted  without  war- 
rant of  law  in  demanding  and  receiving  from  the  master  of  the  vessel 
the  money  and  effects  of  the  deserters.  It  is  only  in  case  of  the  death 
of  a  seaman,  and  under  the  circumstances  indicated  in  the  second  di- 
vision of  section  4539.  Revised  Statutes,  that  any  consular  officer  is 
authorized  to  require  the  money,  wages,  &c.,  of  a  seaman  to  be  deliv- 
ered to  him. 

The  proper  steps  for  the  master  of  the  vessel  to  have  taken  on  the 
desertion  of  the  men  are  pointed  out  in  sections  4597,  4599,  and  4604, 
Revised  Statutes.  If  he  was  unable  to  find  and  arrest  them,  it  was 
his  duty  to  take  charge  of  and  hold  their  clothes,  effects,  and  wages 
until  his  arrival  at  the  port  at  which  his  voyage  terminated.    At  that 

603 


Vol.  XIV,  p.  520  (WILLIAMS) 

port,  which  I  suppose  was  Boston,  he  should,  although  no  forfeiture 
was  as  yet  declared,  have  delivered  the  balance  of  the  property,  after 
deducting  the  expenses  occasioned  by  the  desertion,  to  the  shipping- 
commissioner,  to  be  by  him  paid  over  to  the  judge  of  the  circuit  court 
of  the  United  States  for  the  district  of  Massachusetts;  for  the  prop- 
erty was  held  by  the  master  as  forfeited,  and  the  law  forbids  the  mas- 
ter or  owner  of  the  vessel  to  keep  it,  but  directs  that  it  shall  be  held 
by  the  judge  of  the  circuit  court  for  the  purposes  indicated  in  sections 
4604  and  4610,  Revised  Statutes.  The  law  does  not  require  that  there 
shall  be  an  actual  judgment  of  forfeiture  before  it  becomes  the  duty 
of  the  master  to  pay  over  to  the  shipping-commissioner.  If  it  were 
so,  there  would  seldom  be  a  ease  of  forfeiture,  and  the  fund  for  dis- 
abled seamen  would  not  be  benefited  largely  from  this  source. 

Undoubtedly,  upon  being  put  in  possession  of  the  facts,  the  circuit 
judge  would,  in  a  case  like  the  present,  direct  the  district  attorney  to 
proceed  according  to  law  to  obtain  a  judgment.  But  if  the  deserters 
should  not  appear,  and  cannot  be  found  in  due  time  so  that  service 
can  be  had  upon  them,  I  think  the  law  requires  that  the  money  and 
the  proceeds  of  the  effects  left  by  them  with  masters  of  vessels,  after 
deducting  expenses,  &c.,  should  go  into  the  treasury,  to  be  added  to 
the  fund  for  the  relief  of  sick,  disabled,  and  destitute  seamen  .  (Sec- 
tions 4545.  4604.  and  4610,  Rev.  Stat.) 

In  the  present  case  I  would  advise  that  the  fund  should  be  trans- 
mitted, together  with  such  facts  and  evidences  touching  (522)  the 
case  as  may  be  in  the  possession  of  the  department  of  state,  to  the  cir- 
cuit judge  for  the  district  in  which  the  port  is  where  the  bark  Bolivia 
was  owned,  or  at  which  her  voyage  terminated ;  and  this,  because  such 
would  have  been  the  destination  of  the  fimd  if  the  course  pointed  out 
by  the  law  had  been  pursued,  and  for  the  further  reason  that  the 
deserting  men  may  yet  appear  and,  peradverture,  show  that  their 
desertion  was  excusable,  as  in  the  case  indicated  in  section  4600,  Re- 
vised Statutes,  or  prove  such  a  state  of  facts  as  would  induce  the 
judge  to  reduce  the  penalty. 

I  am.  very  respectfully,  your  obedient  servant, 

GEO.  H.  WILLIAMS. 
Tlon.  Hamilton  Fish,  Secretary  of  State. 


Vol.  XV,  p.  178  (Taft) 

MERCHANT  VESSELS— JUEISDICTION 

A  merchant  vessel,  excejit  under  some  treaty  stipulation  otherwise  providing, 
has  no  exemption  from  the  territorial  jurisdiction  of  the  harbor  in  which  the  same 
is  lying. 

604 


OPINIONS  OF  ATTORNEYS  GENERAL 

The  right  "to  sit  as  judges  and  arbitrators  in  such  diflferences  as  may  arise 
between  the  captains  and  crews,"  given  to  consuls,  vice-consuls,  &c.,  by  article  13 
of  the  treaty  with  Sweden  and  Norway  of  1827,  is  limited  to  the  determination 
or  arbitrament  of  disputes  and  controversies  of  a  civil  nature,  and  does  not  ex- 
tend to  the  cognizance  of  offenses. 

If  the  conduct  of  the  captains  or  of  the  crews,  where  differences  arise  be- 
tween them,  is  such  as  to  "  disturb  the  order  or  tranquillity  of  the  country, ' ' 
(which  includes  all  acts,  as  against  each  other,  amounting  to  actual  breaches  of 
the  public  peace,)  the  right  of  the  local  authorities  to  interfere,  in  the  exercise 
of  their  police  and  jurisdictional  functions,  is  reserved  in  said  article. 

Semble  that  a  more  enlarged  jurisdiction  is  conferred  uj^on  consuls  in  some 
other  treaties,  as  e.  g.,  in  the  treaty  with  France  of  February  23,  1853,  in  the 
treaty  with  the  German  Empire  of  December  11,  1871,  and  in  the  treaty  vdth  Italy 
of  February  8,  1868. 

Department  of  Justice, 
December  14,  1876. 

Sir:  I  have  the  honor  to  state  that  since  the  receipt  of  the  com- 
munication addressed  to  me  by  the  Hon.  J.  L.  Cadwalader,  acting  sec- 
retary, under  date  of  the  14th  of  October  last,  in  regard  to  the  pro- 
ceedings had  before  a  justice  of  the  peace  in  Galveston,  Tex.,  against 
a  part  of  the  crew  of  the  Swedish  bark  Frederica  and  Carolina,  a 
merchant  vessel,  I  have  received  a  further  report  from  the  United 
States  attorney  for  the  eastern  district  of  Texas,  to  whom  a  copy  of 
that  communication  was  sent.  This  report,  together  with  the  state- 
ment of  the  United  States  district  judge  therein  referred  to,  I  enclose 
herewith,  and  beg  that  they  be  returned  to  this  department  when 
no  longer  needed  by  you. 

The  communication  of  the  acting  secretary  contains  a  request  for 
an  expression  of  opinion  touching  the  jurisdiction  of  the  justice  in 
the  proceedings  mentioned.  I  have  considered  the  subject  in  the  light 
of  the  information  furnished  by  your  department  and  by  the  United 
States  attorney,  and  will  now  proceed  to  give  my  views  thereon. 

The  facts  appear  to  be  these :  While  the  above-named  vessel  was 
lying  in  Galveston  harbor,  a  quarrel  arose  on  board  (179)  thereof 
between  the  two  mates  and  the  cook,  which  resulted  in  the  beating  of 
the  latter  by  the  former.  The  cook  made  complaint  to  the  justice  of 
the  peace  above  referred  to,  charging  the  mates  with  assault  and  bat- 
tery. The  accused  were  brought  before  the  justice,  a  trial  was  had, 
they  were  convicted,  and  were  each  fined  $5. 

The  general  rule  of  law  is  that,  except  under  some  treaty  stipula- 
tion otherwise  providing,  a  merchant  vessel  has  no  exemption  from 
the  territorial  jurisdiction  of  the  harbor  or  port  in  which  the  same  is 
lying;  and  it  is  assumed  that  the  justice  had  cognizance  of  the  com- 
plaint in  this  case,  and  that  the  proceedings  before  him  are  not  open 
to  objection,  unless  the  jurisdiction  of  the  local  authorities  was  takeii 

605 


Vol.  XV,  p.  178  (TAFT) 

away  by  the  following  provision  in  article  13  of  the  treaty  with 
Sweden  and  Norway  of  1827,  viz: 

"The  consuls,  vice-consuls,  or  commercial  agents,  or  the  persons 
duly  authorized  to  supply  their  places,  shall  have  the  right,  as  such, 
to  sit  as  judges  and  arbitrators  in  such  differences  as  may  arise  be- 
tween the  captains  and  crews  of  the  vessels  belonging  to  the  nation 
whose  interests  are  committed  to  their  charge,  without  the  interfer- 
ence of  the  local  authorities,  unless  the  conduct  of  the  crews  or  of  the 
captains  should  disturb  the  order  or  tranquillity  of  the  country,  or 
the  said  consuls,  vice-consuls,  or  commercial  agents  should  require 
their  assistance  to  cause  their  decisions  to  be  carried  into  effect  or 
supported. ' ' 

The  only  right  which,  by  the  terms  of  the  above  provision,  is 
granted  to  consuls,  vice-consuls,  &c.,  is  the  right  "to  sit  as  judges 
and  arbitrators  in  such  differences  as  may  arise  between  the  captains 
and  crews;"  and  the  recipients  of  the  right  may,  in  order  "to  cause 
their  decision  to  be  carried  into  effect  or  supported,"  demand  the  as- 
sistance of  the  local  authorities.  This  right  would  seem  to  be  limited 
to  the  determination  or  arbitrament  of  disputes  and  controversies  of 
a  civil  nature,  and  not  to  extend  to  the  cognizance  of  offenses.  And 
such,  indeed,  appears  to  have  been  the  understanding  of  congress,  as 
is  shoMn  by  the  act  of  August  8,  1846,  chap.  105,  which  was  designed 
for  the  more  effectual  enforcement  of  the  provision.  That  act,  after 
setting  out  the  provision  in  a  preamble,  proceeds  to  confer  upon  the 
district  and  circuit  courts  of  (180)  the  United  States,  and  United 
States  commissioners,  authority  to  issue,  upon  the  application  of  the 
consul,  all  proper  remedial  process,  mesne  and  final,  to  carry  into  full 
effect  the  "award,  arbitration,  or  decree"  of  such  consul,  and  to 
enforce  obedience  thereto  by  imprisonment,  &c.  The  language  of  the 
act  is  plainly  inapplicable  to  any  judgment  or  sentence  pronounced  by 
the  consul  against  one  of  the  ofiScers  or  crew  of  a  vessel  for  an  offense ; 
indicating  that  congress  did  not  regard  the  provision  in  the  treaty  as 
imparting  to  him  any  criminal  jurisdiction  whatever. 

On  the  other  hand,  if  the  conduct  of  the  captains  or  of  the  crew, 
where  differences  arise  between  them,  is  such  as  to  "disturb  the  order 
or  tranquillity  of  the  country,"  the  right  of  the  local  authorities  to 
interfere,  in  the  exercise  of  their  police  and  jurisdictional  functions, 
is  distinctly  reserved  by  the  above-mentioned  provisions.  This  reser- 
vation, taken  strictly,  includes  all  acts  on  the  part  of  the  captains  and 
crews,  a,s  against  each  other,  amounting  to  actual  breaches  of  the 
public  peace;  and  in  this  sense  it  may,  perhaps,  cover  the  case  under 
consideration. 

In  the  jurisprudence  of  some  countries,  especially  of  France,  the 

606 


OPINIONS  OF  ATTORNEYS  GENERAL 

general  rule  of  law  already  adverted  to  is  so  far  relaxed  in  practice 
as  that  all  acts  relating  to  the  interior  discipline  of  the  vessel,  and 
even  all  offenses  committed  on  board  by  one  of  the  crew  against  an- 
other which  do  not  affect  the  tranquillity  of  the  port,  are  excluded 
from  the  local  jurisdiction — all  such  matters  being  left  to  the  cogni- 
zance and  disposal  of  the  consul,  and  the  local  authorities  being  au- 
thorized to  interfere  only  when  their  aid  or  protection  is  formally  re- 
quired by  him.  And  by  some  jurists  this  doctrine  is  laid  down  as  a 
rule  of  international  law,  which  operates  in  default  of  treaty  stipula- 
tions. But  though  that  view  does  not  generally  prevail,  and  the  prac- 
tice about  to  be  stated  proceeds  on  a  contrary  view,  the  same  doctrine 
has,  to  a  greater  or  less  degree,  been  formally  introduced  into  nearly 
all  modem  commercial  treaties  between  nations  engaged  in  maritime 
commerce.  See,  for  example,  the  eighth  article  of  our  treaty  with 
France  of  February  23,  1853 ;  the  thirteenth  article  of  our  treaty 
with  the  German  Empire  of  December  11,  1871;  and  the  eleventh 
article  of  our  treaty  with  Italy  of  February  8,  1868.  The  (181)  fea- 
ture common  to  these  articles  is,  that  besides  the  cognizance  of  dif- 
ferences that  may  arise  between  the  officers  and  crew  the  consul  is 
to  have  "charge  of  the  internal  order"  of  the  vessel,  to  the  exclu- 
sion of  the  local  authorities.  And  by  the  act  of  June  11,  1864,  chap. 
116,  providing  for  their  execution,  they  are  described  as  extending 
to  "controversies,  difficulties,  or  disorders,"  &c. ;  and  authority  is 
given  to  any  judge  of  a  United  States  court  and  to  any  United  States 
commissioner,  upon  application  of  the  consul  as  there  provided,  to 
cause  the  person  complained  of  to  be  brought  before  such  judge  or 
commissioner  for  examination,  and  if  he  shall  find  "a  sufficient  prima 
facie  case  that  the  matter  concerns  only  the  internal  order  and  dis- 
cipline of  such  foreign  ship  or  vessel,  or,  whether  in  its  nature  civil 
or  criminal,  does  not  affect  directly  the  execution  of  the  laws  of  the 
United  States,  or  the  rights  and  duties  of  any  citizen  of  the  United 
States,"  he  is  required  to  commit  the  accused,  &c.  Thus  the  doctrine 
above  referred  to  would  seem  to  prevade  the  last-mentioned  treaties, 
and  to  be  recognized  by  congress,  so  far  at  least  as  it  respects  acts  and 
offenses  that  affect  the  internal  order  and  discipline  of  the  vessel,  and 
which  do  not  disturb  the  peace  of  the  port. 

If  the  provision  in  the  treaty  with  Sweden  and  Norway,  quoted 
above,  be  interpreted  as  in  effect  conferring  the  same  powers  upon 
the  consul  as  are  imparted  by  the  other  treaties  cited,  the  jurisdiction 
of  the  justice  in  the  present  case  would  seem  to  depend  upon  whether 
the  offense  complained  of  was  of  a  nature  to  affect  only  the  interior 
discipline  of  the  vessel  and  whether  it  did  or  did  not  disturb  the  pub- 
lic peace.    Here,  however,  the  information  furnished  is  so  meager  as 

607 


Vol.  XV,  p.  178  (TAFT) 

to  lead  to  nothing  definite  or  satisfactory'  on  that  point.  In  the  ab- 
sence of  evidence  to  the  contrarj^.  it  is  fair  to  presume  that  the  jus- 
tice has  not  exceeded  his  jurisdiction. 

I  will  observe,  in  conclusion,  that  in  my  opinion  the  view  of  the 
United  States  district  judge  for  the  eastern  district  of  Texas,  as  stated 
in  his  accompanying  letter,  touching  his  jurisdiction  in  the  habeas 
corpus  case  mentioned  by  him,  is  erroneous.  By  virtue  of  section 
753  of  the  Revised  Statutes,  the  ^\Tit  extends  to  any  one  who  is  in 
custody  in  violation  of  a  treaty  of  the  United  States;  and  if,  at  he 
hearing,  it  should  (182)  appear  that  the  party  is  imprisoned  in  viola- 
tion of  a  treaty,  he  may  and  ought  to  be  discharged.  The  case  to 
which  the  district  judge  refers  involved  the  question  whether  the 
conuiiitment  violated  a  treaty ;  a  question  over  which  he  undoubtedly 
had  jurisdiction  under  the  above  named  section. 

Verj'  respectfully,  your  obedient  servant, 

ALPHONZO  TAFT. 
Hon.  Hamilton  Fish,  Secretary  of  State. 


Vol.  XVI,  p.  268  (Devens) 
DISCHAEGE  OF  SEAMEN  IN  FOEEIGN  PORT 

The  action  of  a  consul,  in  the  exercise  of  the  discretion  given  him  by  sec- 
tions 4580,  4581,  4583,  and  4584,  respecting  the  discharge  of  seamen  in  a  for- 
eign port,  is  not  reviewable  otherwise  than  by  some  competent  court. 

Where  a  consul  has  collected  extra  wages  of  the  master  of  a  vessel  in  a  for- 
eign port,  or  requested  the  collection  of  such  extra  wages  on  the  arrival  of  the  ves- 
sel in  the  United  States,  it  is  not  competent  to  the  secretary  of  the  treasury  or 
any  bureau  of  the  treasury  department,  in  the  examination  of  the  accounts  of  the 
consul,  to  do  anything  more  than  revise  the  amount  of  the  collection  and  determine 
its  arithmetical  accuracy. 

Department  of  Justice, 
February  20,  1879. 

Sir:  Yours  of  the  2d  ultimo  calls  my  attention  to  vsections  4580, 
4581,  4583.  and  4584  of  the  Revised  Statutes,  relating  (269)  to  the 
collection  from  the  master  of  a  vessel  of  extra  wages  on  account  of  a 
seaman  discharged  by  the  order  of  the  American  consul  in  a  foreign 
port,  and  requests  an  expression  of  my  opinion  upon  the  following 
questions,  viz: 

1.  "When,  in  the  exercise  of  the  discretion  vested  in  him  by  the 
sections  of  the  statutes  referred  to,  a  consular  officer  shall  have  de- 
cided that  a  discharge  of  seamen  should  be  granted,  is  that  decision 
to  be  regarded  as  final  and  conclusive,  and  subject  to  no  revision  other 
than  by  a  court  ^f  competent  jurisdiction  ? 

608 


OPINIONS  OF  ATTORNEYS  GENERAL 

2.  ""When  a  consular  officer  shall  have  collected  extra  wages  of 
the  master  of  a  vessel  in  a  foreign  port,  or  shall  have  requested  col- 
lection of  such  extra  wages  on  the  arrival  of  a  vessel  in  the  United 
States,  is  it  competent  for  the  secretary  of  the  treasury,  or  any  bureau 
of  the  treasury  department,  in  the  examination  of  the  accounts  of  said 
officer,  to  do  anything  more  than  revise  the  amount  of  said  collec- 
tion?" 

An  examination  of  these  sections,  and  reference  to  section  1736, 
making  the  consul  civilly  and  criminally  liable  for  any  abuse  of 
power,  leads  me  to  conclude  that  his  action  is  not  reviewable  other- 
wise than  in  some  competent  court,  and  that  the  treasury  department 
has  only  to  examine  the  account  to  determine  its  arithmetical  ac- 
curacy, and  not  to  treat  the  question  of  the  original  propriety  of  the 
discharge  as  though  it  were  de  novo,  before  that  department  upon  ap- 
peal. 

I  therefore  answer  your  first  question  affirmatively,  and  the  sec- 
ond in  the  negative. 

Very  respectfully,  your  obedient  servant, 

CHAS.  DEVENS. 
Hon.  John  Sherman,  Secretary  of  the  Treasury. 


Vol.  XIX,  p.  16  (Garland) 

FOEEIGN  CONSUL 

A  foreign  consul,  resident  in  the  United  States,  must  look  for  protection  in 
his  person  and  property  to  the  laws  of  the  state  in  which  he  residei. 

Department  of  Justice, 

May  5,  1887. 
Sir:  In  reply  to  your  communication  of  the  21st  of  April,  1887, 
calling  my  attention  to  certain  complaints  of  the  imperial  German 
consul  at  Cincinnati,  Ohio,  I  beg  to  say  that  as  the  case  does  not 
come  within  section  4062,  Revised  Statutes  of  the  United  States,  the 
consul  must  look  for  protection  to  the  laws  that  protect  the  rights  of 
the  community  in  which  he  resides.  The  laws  that  protect  the 
President  of  the  United  States  in  his  person  and  property  are  the 
same  as  those  that  protect  the  humblest  citizen,  and  if  the  personal 
or  property  rights  of  that  high  functionary  should  ever  be  violated 
in  the  city  of  Cincinnati  he  would  have  to  look  for  protection  to  the 
laws  of  the  state  of  Ohio.  Certainly  a  foreign  consul  cannot  justly 
complain  that  he  is  not  better  protected  than  the  highest  officer  of  the 
government  of  the  United  States. 

609 


Vol.  XIX,  p.  16  (GARLAND) 

It  results,  then,  that  the  case  presented  is  not  one  in  which  I  can 
give  Assistant  United  States  Attorney  Bruce  any  instructions. 

Very  respectfully,  yours, 

A.  H.  GARLAND. 
The  Secretary  of  State. 


Vol.  XIX,  p.  22  (Garland) 

CLAIM  OF  8.  B.  PETERSON 

The  erew  of  an  American  vessel,  wrecked  on  the  South  Pacific  Ocean,  were 
supplied  >%-ith  necessary  clothing  by  a  United  States  consul,  who,  on  learning  that 
wages  were  due  them,  applied  to  the  master  of  the  vessel  to  pay  for  the  clothing 
out  of  the  wages  due,  which  the  latter  did.  On  their  arrival  in  the  United  States 
the  crew  brought  suit  against  the  owners  of  the  wrecked  vessel  for  their  wages, 
and  recovered  a  judgment  therefor:  Advised,  that  such  owners  have  no  valid 
claim  against  the  United  States  for  the  money  paid  by  the  master,  as  above;  that 
their  remedy,  if  any  they  have,  is  against  the  consul  and  the  sureties  on  his  bond. 

Department  of  Justice, 

May  14,  1887. 
Sir:  Your  communication  of  the  21st  of  April,  1887,  requesting 
an  opinion  on  the  claim  of  S.  B.  Peterson,  Esq.,  asking  to  have  re- 
funded to  him  by  the  United  States  the  sum  of  $218.99,  being  the 
amount,  including  costs,  decreed  against  the  owners  of  the  wrecked 
brig  Levi  Stevens  by  the  United  States  district  court  for  the  dis- 
trict of  California  in  a  suit  for  wages  brought  against  said  owners 
by  the  crew  of  the  said  vessel,  the  ground  of  the  claim  being  that 
nearly  the  whole  of  the  amount  of  the  wages  recovered  had,  at  the 
time  of  suit  brought,  been  already  paid  by  the  master  of  the  said 
vessel  to  the  United  States  consul  at  Apia,  and  by  him  applied  to  what 
he  claimed  to  be  due  for  clothing  furnished  the  crew  of  the  wrecked 
vessel. 

The  Levi  Stevens  was  wrecked  in  the  South  Pacific  Ocean  in  No- 
vember, 1885,  on  the  Suwarrow  Reef.  The  crew  succeeded  in  landing 
on  the  island  of  Suwarrow,  where  they  remained  until  the  following 
March,  when  they  took  shipping  for  Apia,  in  the  island  of  Samoa, 
Avhore  they  arrived  in  the  following  month  of  April. 

The  United  States  consul  at  Apia,  Mr.  Greenbaum,  attended  to 
their  wants,  supplying  them  with  tlie  necessary  clothing,  amongst 
other  things,  and  upon  learning  that  wages  were  due  them  he  applied 
to  the  ma.ster  to  pay  for  the  clothing  furnished  out  of  the  wages  due. 
This  the  master  did  as  to  all  of  the  crew  except  one,  but  without  their 
a.ssent,  he  borrowing  the  necessary  money  on  the  credit  of  the  owners 
of  the  wrecked  vessel. 

610 


OPINIONS  OF  ATTORNEYS  GENERAL 

It  is  found  as  a  fact  in  the  said  case  by  the  district  court  (23) 
that  the  consul,  when  asked  by  the  crew  who  was  to  pay  for  the 
clothing  furnished,  replied,  "the  United  States;"  and  also  that  the 
consul,  at  the  time  he  furnished  the  clothing,  had  no  informatioD  that 
wages  were  due  the  crew. 

It  was  urged  by  the  owners  of  the  wrecked  vessel,  in  defense  to 
the  case  made  by  the  libellants,  that  the  payment  by  the  master  in 
obedience  to  the  consul's  direction  or  demand  was,  to  that  extent,  a 
lawful  discharge  of  the  amount  claimed  in  the  libel. 

But  the  district  court  did  not  consider  the  defense  of  payment 
a  valid  one,  and,  proceeding  on  the  ground  that  the  case  fell  within 
section  4577,  Revised  Statutes,  held  that  the  crew  were  "destitute" 
in  the  sense  of  said  section,  and  so  entitled  to  have  their  necessities 
supplied  and  to  be  sent  home  at  the  expense  of  the  United  States, 
and  decreed  accordingly  for  the  several  amounts  claimed. 

It  is  upon  this  state  of  facts,  presented  considerably  more  in  de- 
tail, that  Mr.  Peterson 's  claim  rests. 

In  my  opinion  he  has  no  valid  demand  against  the  United  States 
for  the  money  paid  by  the  master  of  the  unfortunate  vessel  to  consul 
Greenbaum. 

Section  1697,  Revised  Statutes,  provides  that  every  consul  shall, 
before  receiving  his  commission,  give  a  bond  with  such  sureties  as  the 
secretarj'-  of  state  shall  approve  "for  the  true  and  faithful  accoimting 
for,  paying  over,  and  delivering  up  of  all  fees,  moneys,  goods,  effects, 
books,  records,  papers,  and  other  property  which  shall  come  to  his 
hands,  or  to  the  hands  of  any  other  person  to  his  use  as .  .  .  consul .  . . 
under  any  law  now  or  hereafter  enacted ;  and  for  the  true  and  faith- 
ful performance  of  all  other  duties  now  or  hereafter  lawfully  imposed 
upon  him  as . . .  consul ..."  And  the  bond  so  required  * '  shall  be  de- 
posited with  the  treasury, ' ' 

Section  1735,  Revised  Statutes,  provides  as  follows:  "When- 
ever any  consular  officer  willfully  neglects  or  omits  to  perform  season- 
ably any  duty  imposed  upon  him  by  law,  or  by  any  order  or  instruc- 
tion made  or  given  in  pursuance  of  law,  or  is  guilty  of  any  willful 
malfeasance  or  abuse  of  power,  or  of  any  corrupt  conduct  in  his  of- 
fice, he  shall  be  liable  to  all  persons  injured  by  any  such  neglect  or 
omission,  malfeasance,  abuse,  (24)  or  corrupt  conduct,  for  all  damages 
occasioned  thereby ;  and  for  all  such  damages  he  and  his  sureties  upon 
his  official  bond  shall  be  responsible  thereon  to  the  full  amount  of  the 
penalty  thereof,  to  be  sued  in  the  name  of  the  United  States  for  the 
use  of  the  person  injured.  Such  suit,  however,  shall  in  no  case  preju- 
dice, but  shall  be  held  in  entire  subordination  to  the  interests,  claims, 
and  demands  of  the  United  States,  as  against  any  officer  under  such 

611 


Vol.  XIX,  p.  22  (GARLAND) 

bond,  for  every  willful  act  of  malfeasance  or  corrupt  conduct  in  his 
office." 

Section  1736,  Revised  Statutes,  provides  as  follows:  "If  any 
consul  or  commercial  agent  neglects  or  omits  to  perform  seasonably 
the  duties  imposed  upon  him  by  the  laws  regulating  the  shipment  and 
discharge  of  seamen  and  the  reclamation  of  deserters  on  board  or  from 
vessels  in  foreign  ports,  or  is  guilty  of  any  malversation  or  abuse  of 
power,  he  shall  be  liable  to  any  injured  person  for  all  damage  occa- 
sioned thereby;  and  for  all  malversation  and  corrupt  conduct  in  of- 
fice he  shall  be  punishable  by  imprisonment  for  not  more  than  one 
year  and  by  a  fine  of  not  more  than  ten  thousand  dollars  and  not 
less  than  one  thousand." 

It  thus  appears  that  congress  has  addressed  itself  with  some  care 
to  the  subject  of  providing  security  against  the  unfaithfulness  of  per- 
sons holding  consular  offices,  and  we  are  not  at  liberty  to  say  that  the 
provision  thus  made  is  not  entirely  adequate. 

It  can  not  be  doubted  that  this  legislation  was  the  result  of  the 
well-settled  principle  that  the  United  States  is  not  liable  to  its  citizens 
for  the  consequences  of  the  wrongs  or  shortcomings  of  its  officers. 
"No  government,"  says  Mr.  Justice  Miller  in  Oihhons  v.  United 
States  (8  Wall,  269,  274),  "has  ever  held  itself  liable  to  individuals 
for  the  malfeasance,  laches,  or  unauthorized  exercise  of  power  by  its 
officers  and  agents. ' '  The  same  doctrine  has  been  often  laid  down  by 
the  same  court  {Minium  v.  United  States,  106  U.  S.,  437;  United 
States  V.  Kirkpatrick,  9  Wh.,  720;  United  States  v.  Van  Zandt,  11  /&., 
184;  Dox  V.  Postmaster-General,  1  Pet.,  318). 

It  is  thus  very  clear  that  if  the  claimant,  Peterson,  has  any  rem- 
edy it  is  against  the  consul  and  the  sureties  on  his  bond,  and  not  by 
any  possibility  against  the  United  States.  This  would  seem  to  dispose 
of  the  case. 

(25)  It  might  be  considered  as  hardly  proper  if  I  were  to  go 
further  and  indicate  an  opinion  on  the  abstract  question  as  to  the 
meaning  of  the  word  "destitute"  as  used  in  section  4577,  Revised 
Statutes,  in  view  of  the  conflict  in  that  particular  between  the  de- 
partment of  state  and  the  United  States  district  court  for  the  district 
of  California.  The  question  is  a  judicial  one,  and  should  be  settled, 
it  would  seem,  by  the  courts,  At  the  same  time,  if  it  were  before 
me  as  a  practical  question,  I  should  dispose  of  it  as  any  other  ques- 
tion. 

Very  respectfully, 

A.  H.  GARLAND. 
The  Secretary  of  State. 


612 


OPINIONS  OF  ATTORNEYS  GENERAL 

Vol.  XIX,  p.  196  (Garland) 

OFFICIAL  CONSULAR  SERVICES 

Under  the  laws  and  usages  governing  the  American  consular  service,  the  au- 
thentication, noting  etc.,  of  marine  protests  are  to  be  regarded  as  official  consular 
services. 

Department  of  Justice, 

November  22,  1888. 

Sir :  By  your  letter  of  the  25th  of  October,  1888,  you  inquire,  as 
I  understand  your  communication,  whether  "the  natural  and  essen- 
tial character  of  the  consular  services  of  authenticating,  noting,  etc., 
marine  protests,  apart  from  the  factitious  status  given  them  by  in- 
clusion in  the  tariff  of  official  fees,"  are  or  are  not  official  consular 
services  ? 

The  office  of  consul  is  of  very  ancient  origin.  In  its  early  history 
its  incumbent  was  a  municipal  officer,  intrusted  with  the  power  and 
charged  with  the  general  duty  of  the  enforcement  of  the  laws  of  the 
sovereignty  w^hich  he  represented  over  its  citizens  resident  in  a  spe- 
cial locality  or  municipality,  out- (197)  side  of  the  general  territorial 
jurisdiction  of  the  sovereign.  "Within  the  governments  of  Christen- 
dom, the  exterritorial  jurisdiction  of  a  foreign  sovereignty  over  its 
citizens  has  generally  ceased  to  exist,  and  the  local  law  governs  the 
residents  as  well  as  the  citizens  of  a  nation.  But  outside  of  the  pale 
of  Christendom,  in  some  instances  the  exterritorial  jurisdiction  of 
the  sovereignty  still  exists,  and  the  corresponding  powers  and  duties 
of  the  consul  still  survive.  Under  international  law  there  have  been 
and  are,  therefore,  different  official  duties  incident  to  the  office  of  con- 
sul, varj'ing  with  time,  place,  and  circumstances.  No  invariable  test 
can  be  derived  from  international  law,  or  from  the  general  character 
of  the  consular  office,  by  which  to  determine  what  services  performed 
by  the  consul  are  official  consular  services,  and  what  are  not.  The 
American  consul  has  no  authority  except  what  may  be  expressly 
granted  by  a  law  of  congress,  and  acknowledged  by  the  government 
in  whose  jurisdiction  he  resides.  His  duties  are  described  in  different 
acts  of  congress,  and  in  the  consular  instructions  of  the  department 
of  state.     (Warden's  Consular  Establishment,  page  140.) 

"In  process  of  time,  by  traditional  usage,  by  positive  provisions 
of  local  law,  and  by  treaty  stipulations,  the  existing  legal  character 
with  its  limited  rights  was  fixed  on  the  foreign  consuls  mutually  ac- 
credited in  the  countries  of  Christian  Europe  and  America."  (7 
Opin.,  348.) 

"Whether  the  taking  of  marine  protests  is  an  official  consular  ser- 

613 


Vol.  XIX,  p.  196  (GARLAND) 

vice,  or  a  non-consular  service,  must  be  determined  by  tradition,  usage, 
treaties,  and  laws.  The  second  section  of  the  act  of  the  14th  of 
April.  1792  (]  Stat.,  255),  provides: 

"And  for  the  direction  of  the  consuls  and  vice-consuls  of  the 
United  States  in  certain  eases. 

"Sec.  2.  Be  it  enacted  hy  the  autJiority  aforesaid.  That  they 
shall  have  the  right,  in  the  ports  or  places  to  which  they  are  or  may 
be  severally  appointed,  of  receiving  the  protests  or  declarations  which 
such  captains,  masters,  crews,  passengers,  and  merchants,  as  are  citi- 
zens of  the  United  States,  may  respectively  choose  to  make  there." 

By  the  twenty-second  section  of  the  act  of  the  1st  of  March, 
1855  (10  Stat.,  626,)  it  is  provided: 

"That  the  following  record  books  shall  be  provided  for  and 
(198)  kept  in  each  consulate  and  commercial  agency, ...a  book  for 
the  entry  of  protests,  and  in  which  all  other  official  consular  acts  like- 
wise shall  be  recorded." 

In  an  opinion  rendered  on  the  2d  of  June,  1855  (7  Opin.,  259), 
Attorney-General  Gushing,  in  classifying  and  distinguishing  between 
consular  and  non-consular  services,  applying  the  act  last  referred  to, 
concludes : 

"(4)  Drawing  out  a  power  of  attorney,  bottomry  bond,  will, 
or  any  such  similar  service,  is  a  notarial,  not  a  consular  act;  and 
therefore  only  the  certificate  upon  it  would  go  to  the  account  of  the 
government. 

"  (5)  I  should  have  said  the  same  of  extending  a  protest,  but  for 
the  phrase  in  another  part  of  the  act,  'a  book  for  the  entry  of  pro- 
tests, and  in  which  all  other  official  consular  acts  likewise  shall  be  re- 
corded,' which  seems  to  cover  the  fact  of  extending  a  protest,  and  so 
to  give  the  fee  to  the  government." 

In  determining  what  are  the  usage  and  law  on  this  subject  sec- 
tion 1745  of  the  Revised  Statutes  can  not  well  be  omitted.  It  pro- 
vides: "The  president  is  authorized  to  prescribe  from  time  to  time  the 
rates  or  tariffs  of  fees  to  be  charged  for  official  services,  and  to 
designate  what  shall  be  regarded  as  official  services  besides  such  as 
are  expressly  declared  by  law  in  the  business  of  the  several  lega- 
tions, consulates,  and  commercial  agencies." 

This  section  authorizos  the  president  to  prescribe  a  tariff  of  fees 
for  official  services  only,  and  does  not  authorize  him  to  fix  the  rate 
for  non-official.  It  also  empowers  him  to  designate  or  name  what  shall 
be  regarded  as  official  servier's  beside  such  as  are  expressly  declared 
by  law.  When  thus  empowered,  if  he  shall  name  or  designate  in  the 
tariff  of  fees  as  official  that  which  before  had  not  been  so  regarded, 
from  the  time  of  such  naming  or  designation  the  services  thus  desig- 

614 


OPINIONS  OF  ATTORNEYS  GENERAL 

nated  should  be  regarded  as  official.  Your  communication  shows  that 
the  president  has  prescribed  a  rate  of  fees  under  the  section,  and  that 
he  has  therein  named  such  marine  protests  as  are  referred  to  in  yours. 
I  therefore  conclude  from  the  usage,  as  shown  from  the  laws  of  the 
past  (some  of  which  have  been  repealed)  and  those  of  the  present, 
(199)  that  the  "authenticating,  noting,"  etc.,  of  "marine  protests," 
concerning  which  you  enquire,  are  official  consular  services. 

Very  respectfully, 

A.  H.  GARLAND. 
The  Secretary  of  State. 


Vol.  XIX,  p.  225  (Garland) 
CONSULAE  FEES 

A  certified  consular  invoice  is  required  by  law  for  the  admission  to  entry 
of  imported  merchandise  not  subject  to  duty,  excepting  where  congress  has  ex- 
pressly dispensed  with  that  requirement. 

The  new  addition  of  the  consular  regulations  of  1888  contains  provisions  mak- 
ing the  fee  for  a  consular  certificate  to  an  invoice  of  merchandise  not  subject  to 
duty  official  and  returnable  to  the  treasury. 

The  fee  for  such  certificate  may  be  rendered  official  by  executive  order,  and 
specially  included  in  the  tariff  of  official  fees  under  the  Eevised  Statutes. 

Department  of  Justice, 

January  22,  1889. 

Sir:  Yours  of  the  21st  ultimo  and  of  the  3d  instant,  with  in- 
closure,  have  been  received,  and  in  them  you  request  an  official  opin- 
ion upon  three  propositions  touching  the  subject  of  consular  fees, 
which  have  arisen  by  reason  of  a  recent  decision  of  the  United  States 
court  of  claims  in  the  claim  of  John  S.  Mosby,  the  former  consul  at 
Hong-Kong,  China. 

Attorney-General  Gushing  had  occasion,  in  1855,  to  ^vrite  an  ex- 
cellent opinion  upon  this  and  other  subjects  relating  to  the  consular 
service,  in  which  he  construed  the  act  of  March  (226)  1,  1855,  (10 
Stat.,  623;  7  Opin.,  243).  This  act  was,  however,  wholly  repealed  by 
the  act  of  August  18,  1856.     (11  Stat.,  65.) 

The  important  and  material  sections  of  the  latter  act  were  trans- 
ferred to  and  are  now  embraced  in  the  several  chapters  of  Title 
XVIII  of  the  Revised  Statutes. 

The  questions  presented  for  consideration  bear  directly  upon  the 
commercial  relations  of  the  United  States  with  foreign  governments 
or  their  subjects,  and  the  provisions  of  law  above  referred  to  must 
necessarily,  therefore,  be  considered  in  connection  with  the  laws  reg- 
ulating the  importation  of  goods,  whether  free  or  dutiable,  into  the 
United  States. 

615 


VoL  XIX,  p.  225  (GARLAND) 

With  this  preliminary  and  casual  reference  to  the  law  by  which 
your  propositions  will  be  governed,  I  shall  now  answer  your  ques- 
tions in  their  order. 

* '  The  court  hold  that  the  certificate  to  an  invoice  of  merchandise 
not  subject  to  duty  is  a  non-official  paper;  that  the  consular  regula- 
tions of  1874  and  1881  contain  no  provisions  making  the  consular 
charge  for  such  a  certificate  an  official  fee ;  but  they  intimate  that  the 
president  may,  in  his  discretion,  prescribe  fees  for  non-official  acts, 
and  thereby  render  such  fees  official.  This  leads  to  the  inquiry 
whether  the  new  edition  of  the  consular  regulations,  formulated  by 
the  president  in  February,  1888,  to  go  into  effect  April  1,  1888,  contain 
any  provision  by  virtue  of  which  the  fee  for  a  consular  certificate  to 
an  invoice  of  merchandise  not  subject  to  duty  is  made  official  and 
returnable  to  the  treasury.  The  paragraphs  touching  official  fees  and 
invoices  are  491-508,  and  636-682." 

Merchandise  shipped  to  the  United  States  in  transit  to  a  foreign 
country,  as  indicated  by  manifests,  bills  of  lading,  or  other  documents, 
are  not  importations  into  the  United  States  under  the  law,  and  con- 
sular invoices  are  not  required. 

Strictly  speaking,  therefore,  importations  under  the  statutes  con- 
sist of  goods  that  are  dutiable  and  goods  that  are  admitted  free. 
There  is  no  controversy  as  to  the  requirements  of  an  invoice  and  the 
character  of  the  consular  fee  in  regard  to  dutiable  importations.  It 
will  be  observed  that  the  law  upon  the  subject  of  consular  invoices 
is  found  in  the  statutes  regulating  the  customs  duties. 

The  answer,  therefore,  to  the  material  part  of  the  above  (227) 
question  depends  upon  the  construction  or  application  of  the  pro- 
visions of  section  1  of  the  act  of  March  3,  1863  (12  Stat.,  737)  and  of 
section  1  of  the  act  of  June  22,  1874,  (18  Stat.,  pt.  3,  p.  187.)  The 
provisions  of  section  1  of  the  act  of  March  3,  1863,  have  been  re- 
enacted  in  sections  2853,  2855,  and  2860,  of  the  Revised  Statutes;  but 
no  part  of  the  act  of  June  22,  1874,  has  been  embraced  in  the  Revised 
Statutes.  It  may  be  found,  however,  in  volume  1  of  the  supplement  to 
the  Revised  Statutes,  page  79. 

These  statutes  are  now  in  full  force,  and  in  effect  they  are  pro- 
hibitory. No  distinction  is  made  in  them  between  dutiable  and  free 
goods.  Whether  the  goods  belong  to  the  one  or  the  other  class,  they 
are  alike  importations.  Nor  are  free  importations  included  in  the 
exceptions  under  which  merchandise  may  be  admitted  to  entry  with- 
out the  invoices  required  by  these  statutes,  although  some  exceptions 
are  expressly  made.  The  law-makers  have  not  included  free  goods 
within  the  exceptions,  and  they  can  not  be  admitted  to  entry  without 
the  consular  invoice  required,  unless  the  strict  and  familiar  rule  of 

616 


OPINIONS  OF  ATTORNEYS  GENERAL 

construction  of  statutes  is  relaxed  for  the  purpose.     This  can  not  be 
done. 

The  first  section  of  the  act  of  March  3,  1863,  expressly  prohibits 
the  admission  to  entry  of  goods  unless  the  consular  invoice  accom- 
panies them.  Section  9  of  the  act  of  June  22,  1874,  provides,  "that 
except  in  the  case  of  personal  effects  accompanying  the  passenger,  no 
importation  exceeding  one  hundred  dollars,  in  dutiable  value,  shall  be 
admitted  to  entry  without  the  production  of  a  duly  certified  invoice 
thereof  as  required  by  law. " 

The  state  and  treasury  departments,  which  have  cognizance  of 
these  matters,  have,  according  to  the  information  transmitted  by  you, 
construed  the  above  statutes  to  mean  that  "the  fact  that  imported 
goods  are  entitled  to  free  entry  does  not  excuse  the  production  of  a 
certified  invoice."  And  in  1872  the  question  arose,  and  the  secretary 
of  the  treasury  on  the  8th  of  November  in  that  year  so  decided,  and 
notified  the  collector  of  customs  at  San  Francisco,  Cal.,  by  letter  of 
such  decision. 

"The  construction  given  to  a  statute  by  those  charged  with  the 
duty  of  executing  it  is  always  entitled  to  the  most  (228)  respectful 
consideration,  and  ought  not  to  be  overruled  without  cogent  reasons 
(Edwards  vs.  Darby,  12  Wheat.  210;  United  States  vs.  The  State 
Bank  of  North  Carolina,  6  Pet.,  29 ;  United  States  vs.  McDaniel,  7  ih., 
1).  The  officers  concerned  are  usually  able  men  and  masters  of  the 
subject.  Not  unfrequently  they  are  the  draughtsmen  of  the  laws 
they  are  afterwards  called  upon  to  interpret."  (United  States  vs. 
Moor,  95  U.  S.  R.,  763.) 

And  the  above  rule  of  contemporaneous  construction  of  statutes, 
by  those  charged  with  their  execution,  applies  in  all  cases  of  am- 
biguity and  doubt.  (Swift  Co.  vs.  United  States,  105  U.  S.  R.,  695, 
and  the  cases  therein  cited ;  United  States  vs.  Philbrick,  120  U.  S.  R. 
52;  United  States  vs.  Hill,  ih.,  169.) 

It  is  not  necessary  to  discuss  the  reasons  why  certified  consular 
invoices  should  or  should  not  be  required  for  free  importations,  in- 
asmuch as  the  conclusion  has  been  reached,  as  will  be  perceived  from 
the  above  remarks,  that  such  invoices  are  required  by  law. 

The  president  may,  therefore,  in  his  discretion,  prescribe  the  fee 
for  a  consular  certificate  to  an  invoice  of  merchandise  not  subject  to 
duty  as  official  and  require  it  to  be  returned  to  the  treasury.  And 
even  if  those  certified  invoices  were  not  required  by  law,  the  presi- 
dent is  authorized  in  his  discretion,  under  section  1745  of  the  Re- 
vised Statutes,  to  designate  the  ser\dce  of  the  consul  in  certifying  such 
invoices  as  official,  and  also  to  declare  the  fee  prescribed  therefor  to  be 
official,  and  require  it  to  be  accounted  for  to  the  treasury, 

617 


Vol.  XIX,  p.  225  (GARLAND) 

Upon  my  first  examination  of  the  paragraphs  of  the  consular 
regulations  of  18S8,  referred  to  in  your  communication,  I  was  under 
the  impression  that  item  36  of  paragraph  508  included  a  special  ref- 
erence to  the  section  of  the  Revised  Statutes  in  which  invoices  for 
dutiable  goods  are  required  and  the  fee  prescribed.  But,  upon 
further  investigation  and  reflection,  I  tuid  this  impression  to  be  erron- 
eous. Item  36  of  paragraph  508  is  broad  enough  in  its  provisions  to 
include  the  fee  for  a  consular  certificate  to  an  invoice  of  merchandise 
not  subject  to  duty,  and  to  make  such  fee  official  and  returnable  to 
the  treasurJ^ 

In  answer  to  your  second  inquiry,  I  beg  to  say,  that  I  see  (229) 
no  reason  why  the  fee  for  certifying  an  invoice  may  not  be  rendered 
official  by  executive  order  and  specially  included  in  the  tariff  of  fees 
in  accordance  with  section  1745  of  the  Revised  Statutes. 

The  answers  to  your  first  and  second  inquiries  render  it  unneces- 
sary for  me  to  express  an  opinion  upon  the  third  proposition  sub- 
mitted. 

I  am  of  the  opinion  therefore — 

(a)  That  a  certified  consular  invoice  is  required  by  law  for  the 
admission  to  entry  into  the  United  States  of  goods  and  merchandise 
not  subject  to  duty,  except  in  the  instance  in  which  congress  has  ex- 
pressly dispensed  with  the  requirement  of  the  same. 

(b)  That  the  new  edition  of  the  consular  regulations  of  1888  con- 
tains provisions  which  make  the  fee  for  consular  certificate  to  an  in- 
voice of  merchandise  not  subject  to  duty  official  and  returnable  to  the 
treasury. 

I  am  also  of  the  opinion  that  the  fee  for  certificates  to  consular 
invoices  may  be  rendered  official  by  executive  order,  and  specially  in- 
cluded in  the  tariff  of  official  fees  under  the  Revised  Statutes. 

Very  respectfully, 

A.  H.  GARLAND. 
The  Secretary  of  State. 


Vol.  XX,  p.  26  (Taft) 
SEALED  CARS 

Department  of  Justice, 

February  13,  1891. 

(31)    Extract)     3.    The   third   question   is  whether   or  not  the 

law  referred   to,  or  any   other,   requires  that  officers  of  the  United 

States    shall  be  stationed    on    contiguous    foreign    territory    for   the 

purpose   of    sealing    cars   into   which    may    be    placed    merchandise 

618 


OPINIONS  OF  ATTORNEYS  GENERAL 

destined  for  ports  within  our  territory.  Section  2  of  the  act  of  1864 
evidently  contemplates  the  presence  in  the  contigu-  (32)  ous  country 
of  some  officers  authorized  to  seal  cars.  By  the  third  section  the  sec- 
retary is  required  to  make  regulations  for  the  sealing  of  cars  by  such 
officers.  The  sealing  of  a  ear  is  not  very  different  from  other  duties 
of  a  commercial  character  which  have  been  imposed  upon  consular 
officers  of  the  United  States  from  the  foundation  of  the  government. 
It  is  reasonable,  therefore,  to  suppose  that  congress  intended  that  the 
duty  here  referred  to  should  be  performed  by  consular  officers.  Such 
has  been  the  construction  of  the  act  since  its  passage.  There  is  there- 
fore an  implied  obligation  upon  the  secretary  to  authorize  such  officers 
to  seal  cars  and  vessels  under  the  act  in  question.  There  is  no  pro- 
visions of  law,  however,  requiring  the  secretary  of  the  treasury  to 
appoint  inspectors  for  the  sole  purpose  of  sealing  cars  and  vessels  in 
the  contiguous  countries,  and  there  is  no  appropriation  out  of  which 
such  inspectors  could  be  paid.  The  seventh  section  of  the  smuggling 
act  empowers  the  secretary  to  appoint  additional  inspectors  in  certain 
revenue  districts  of  the  United  States,  but  nothing  is  said  of  inspectors 
stationed  in  foreign  countries.  Section  2999  authorizes  the  appoint- 
ment of  special  agents  of  the  treasury  to  reside  in  foreign  countries 
through  which  bonded  goods  are  carried  from  the  warehouse  of  one 
collection  district  of  the  United  States  on  the  Atlantic  coast  to  that 
of  another  on  the  Pacific  coast,  and  vice  versa,  for  the  purpose  of 
supervising  the  transportation  of  such  goods  through  the  foreign 
country  and  preventing  fraud  upon  the  government.  This  section 
was  enacted  in  1854,  and  was  evidently  directed  to  the  carriage  of 
goods  over  the  Isthmus  of  Panama.  It  cannot  in  any  view  apply  to 
the  case  in  hand. 

Section  2  was  an  exception  to  the  operation  of  section  1  of  the 
smuggling  act  of  18.64.  It  was  doubtless  supposed  by  congress  that 
the  bulk  of  importations  would  be  made  under  section  1  of  the  act, 
and  that  the  exceptional  cases  under  section  2  could  be  properly  at- 
tended to  by  the  consular  officers,  and  the  government  thereby  pro- 
tected from  fraud.  If  it  now  turns  out  that  the  importations  in 
the  manner  provided  in  section  2  are  so  great  that  consular  officers 
are  not  fitted,  or  have  not  the  opportunity  by  reason  of  their  other 
duties,  to  so  examine  the  goods  and  seal  the  cars  as  to  prevent  fraud, 
the  secretary  of  the  treasury  has  no  authority  by  (33)  law,  and 
therefore  is  not  required,  to  appoint  new  officers  especially  charged 
with  the  duty.  This  result  may  be  a  reason  for  congressional  action 
granting  such  authority,  but  until  it  is  granted  consular  officers  must 
continue  to  do  the  sealing. 

The  only  way  now  open  to  the  secretary  of  preventing  the  evils 

619 


Vol.  XX,  p.  26  (TAFT) 

which  have  proved  necessarily  incident  to  the  system  of  sealing  cars 
in  accordance  with  section  2  of  the  act  of  1864,  under  the  present 
regulations,  is  to  modify  the  regulations,  by  directing  that  an  examin- 
ation of  some  kind  be  had  upon  the  frontier. 

Very  respectfully, 

WM.  H.  TAFT, 
Solicitor-Oeneral. 
The  Acting  Secretary  of  the  Treasury, 

Approved :  WM.  H.  H.  MILLER. 


Vol.  XX,  p.  92   (Miller) 
PERSONS  IN  CHARGE  OF  CONSULAR  OFFICES 

A  person  placed  in  charge  of  a  consular  office  by  the  incumbent  of  the  con- 
sulate, but  without  appointment  and  qualification  as  prescribed  by  the  constitu- 
tion and  laws  of  the  United  States,  cannot  lawfully  perform  the  regular  of- 
ficial duties  of  the  post,  nor  should  he  be  permitted  to  perform  those  other  unof- 
ficial services,  such  as  notarial  services,  which  a  consul  is  not  required  by  law  to 
perform,  but  the  chief  value  of  which  depends  entirely  on  the  fact  that  the  person 
rendering  them  is  a  consular  officer. 

Department  of  Justice, 

May  7,  1891. 

Sir:  Your  communication  of  January  15,  ultimo,  earlier  atten- 
tion to  which  has  been  unavoidably  delayed,  requests  an  opinion  upon 
the  question  whether  a  person  placed  in  charge  of  a  consular  office 
by  the  incumbent  of  the  consulate  to  which  the  office  belongs,  but 
"without  appointment  and  qualification  as  prescribed  by  the  con- 
stitution and  laws  of  the  United  States"  can  perform  (1)  the  regular 
official  duties  of  the  post,  and  (2)  notarial  and  other  unofficial  ser- 
vices. ' ' 

I  am  imable  to  see  how  a  person  can  lawfully  execute  the  duties 
of  a  public  office  of  the  United  States  who  has  not  been  clothed  with 
authority  to  do  so  by  the  appointing  power  of  the  United  States. 
Such  a  person  cannot  possibly  have  any  virtue  in  him  as  a  public 
officer.     This  disposes  of  the  first  branch  of  your  question. 

The  second  branch  refers  to  that  class  of  functions  which  are 
performed  customarily  by  consuls,  but  which  are  entirely  unofficial, 
being  neither  required  to  be  done  by  the  law  nor  by  executive  regu- 
lations.    (United  States  v.  Moshy,  133  U.  S.,  273.) 

The  value  of  such  services  depends  entirely  on  the  fact  that  the 
person  rendering  them  is  a  consular  officer.  It  may  be  that  the  laws 
of  a  state  of  the  United  States  give  validity  to  certain  services  of  that 
kind,  as.  for  example,  taking  (93)  acknowledgments  abroad  of  convey- 
ances of  land  in  such  state,  or  it  may  be  that  the  efficiency  of  the  act 

f)20 


OPINIONS  OF  ATTORNEYS  GENERAL 

is  due  to  the  faith  generally  reposed  in  consular  officers.  Howevet 
that  may  be,  the  United  States  would  seem  to  be  in  duty  bound  to 
protect  the  public,  as  far  as  it  may  be  reasonably  expected  to  do  so, 
against  the  exercise  of  even  merely  voluntary  consular  functions  by 
persons  not  regularly  appointed  consuls.  It,  therefore,  clearly  con- 
cerns the  United  States  that  no  person  shall  be  permitted  to  exercise 
the  office  of  consul  of  the  United  States  in  any  way  who  has  not 
been  authorized  by  congress  to  do  so.  This  disposes  of  the  second 
branch. 

Very  respectfully,  yours, 

W.  H.  H.  MILLER. 
The  Secretary  of  State. 


Vol.  XX,  p.  455  (Miller) 

NOTARY 

Department  of  Justice, 

August  25,  1892. 

(458)  (Extract)  It  is  clear  that  the  applications  to  which 
you  refer,  and  which  are  illustrated  by  the  communications  of  Consul- 
General  Goldschmidt  and  Mr.  Jentzsch,  viz,  those  that  are  (459) 
signed,  or  signed  and  sworn  to,  in  blank,  and  afterwards  filled  in,  and 
those  which  bear  merely  a  certificate  of  the  signing,  but  no  appli- 
cant's oath  or  affidavit,  furnish  no  sufficient  ground  for  official  action 
in  the  patent  office. 

The  practices  referred  to  relates  to  administrative  matters  within 
the  purview  of  your  department,  and  are  such  as  may  well  be  called 
to  the  attention  of  congress,  but  they  are  not  such  as  now  require  an 
official  opinion  from  me. 

In  conclusion,  it  is  my  opinion  that  a  notary  of  Austria-Hun- 
gary, who  is  not  authorized  by  the  laws  of  his  country  to  administer 
oaths  or  take  affidavits,  lacks  the  requisite  authority  to  administer  the 
oath  required  by  section  4892  of  the  Revised  Statutes. 

Very  respectfully, 

W.  H.  H.  MILLER. 
The  Secretary  of  the  Interior. 


Vol.  XXI,  p.  201  (Harmon) 
CONSUL— ATTORNEY-GENERAL 

When  a  consul  intervenes  in  a  controversy  between  master  and  seamen,  by 
mutual  consent  of  the  disputants,  he  acts  as  an  arbitrator  and  not  as  consul. 

The  attorney- general  can  not  be  called  upon  for  an  opinion  unless  specific 

621 


Vol.  XXI,  p.  201  (HARMON) 

questions  of  law  are  formulated  which  relate  to  an  existing  question  calling  for 
the  action  of  the  department  requesting  it. 

(202)  Department  of  Justice, 

July  26,  1895. 

Sir:  I  have  your  letter  of  July  24,  1895,  inclosing  a  statement 
of  the  United  States  consul  at  Havre  that  the  steam  yacht  Barraconta, 
a  foreign-built  vessel,  owned  by  a  citizen  of  the  United  States  and 
unregistered,  arrived  at  that  port  from  the  Mediterranean,  destina- 
tion, foreign  ports,  and  that  he  had  intervened  on  account  of  disputes 
and  differences  that  had  arisen  between  the  master  and  first  officer 
on  the  one  side  and  the  chief  engineer  and  cook  on  the  other  side. 

You  request  "an  opinion  upon  the  facts  presented"  in  the  com- 
mimication  from  the  consul. 

You  further  state :  "I  should  have  no  hesitation  in  approving 
the  action  of  the  consul  at  Havre  if  the  yacht  in  question  were  a  regis- 
tered American  vessel,  but  I  am  unwilling  to  assume  the  responsibility 
of  determining  the  legal  status  of, a  foreign-built  yacht." 

It  is  not  entirely  clear  to  me  upon  what  points  you  wish  an 
opinion. 

It  is  against  the  settled  practice  of  this  department  to  give  an 
opinion  upon  a  general  statement  of  facts  without  a  specification 
presenting  special  questions  of  law.  (14  Opin.,  367;  20  Opin.,  259, 
493,  699,  711,  723.) 

The  attorney-general  can  not  properly  give  an  opinion  where 
it  does  not  appear  that  some  question  exists  calling  for  the  actions  of 
the  department  requesting  it.     (20  Opin.,  383,  420,  465,  618.) 

It  appears  from  the  consul's  statement  that  what  he  did  was 
"by  mutual  consent  of  master  and  seamen."  It  would  seem  from 
this  that  he  had  exercised  no  consular  authority,  and  that  he  in  effect 
acted  as  arbitrator  by  consent  of  parties,  and  therefore  it  is  not  ap- 
parent to  me  that  any  question  arising  out  of  his  action  is  now  pend- 
ing in  the  administration  of  your  department. 

If  there  be  no  question  pending  in  your  department  requiring 
official  action  necessarily  involving  a  determination  of  "the  legal 
status  of  a  foreign-built  yacht,"  I  would  not  be  warranted  in  giving 
to  you  an  opinion  upon  that  subject. 

If,  in  the  administration  of  your  department,  any  action  is  neces- 
sary in  respect  of  wiiat  the  consul  has  done  in  this  case,  I  request 
that  you  will  formulate  specific  questions  of  law  upon  which  you  wish 
to  have  my  opinion. 

Very  respectfully, 

JUDSON  HARIMON. 
The  Secretary  of  State. 

622 


OPINIONS  OF  ATTORNEYS  GENERAL 

Vol.  XXII,  p.  32  (Richards) 
DAMAGES— ILLEGAL— IMPEISONMENT 

Department  of  Justice, 

February  7,  1898. 
(Extract)  Sir:  On  January  4,  1886,  a  citizen  of  the  United 
States,  Mr.  Thomas  J.  CuUiton,  the  treasurer  of  the  dredging  com- 
pany then  doing  work  on  the  Isthmus  of  Panama,  was  arrested  (33) 
and  imprisoned  by  the  acting  perfect  of  Colon  without  judicial  pro- 
cess and  without  any  allegation  of  a  violation  of  law,  but  simply  be- 
cause Mr.  Culliton's  conduct  was  alleged  by  the  prefect  to  be  in  dis- 
respect of  his  authority.  The  United  States  consul  at  Colon  and  Ad- 
miral Jouett,  who  happened  to  be  in  port  at  that  time,  intervened, 
and  Cullion  was  released  by  the  order  of  the  prefect  after  five  hours 
dention  in  the  common  jail.  The  statement  of  this  outrage  contained 
in  the  protest  filed  by  Mr.  Culliton  with  our  consul  at  Colon,  April 
6,  1886,  is  as  follows: 
*********  * 

Very  respectfully, 

JOHN  K.  RICHARDS, 

Solicitor-General. 
Approved :  JOHN  W.  GRIGGS. 

The  Secretary  of  State. 


Vol.  XXII,  p.  72  (Griggs) 
ENTRY  AND  EETUEN  CERTIFICATES  OF  CHINESE 

The  original  entry  certificates  of  Chinese  merchants  and  others  exempted  must 
be  issued  by  their  government  or  the  government  where  they  last  reside. 

The  return  certificate  of  Chinese  persons  entitled  to  return  to  the  United 
States  under  the  contingency  contemplated  by  article  II  of  the  treaty  of  1894 
vnth  China  must  be  accompanied  by  a  certificate  as  to  the  facts,  made  by  the 
Chinese  consul  at  the  port  of  departure. 

Certificates  issued  to  Chinese  persons  of  the  exempted  class  by  the  Chinese 
consul  at  Havana  in  the  absence  of  certification  by  a  consular  ofiicer  of  the 
United  States  should  not  be  accepted  by  the  customs  officials  of  the  United 
States. 

The  return  entry  of  such  Chinese  is  allowed  only  on  strict  compliance  with  the 
terms  of  the  treaty  and  the  regulations  formed  thereunder. 

The  terms  upon  which  the  representation  of  the  interests  of  the  United  States 
at  Havana  was  committed  or  intrusted  to  the  British  consul  during  the  exist- 
ing war  with  Spain  were  informal  and  did  not  specially  include  the  service  of 
viseing  certificates  to  be  issued  to  Chinese  persons. 

Chinese  certificates  viseed  by  the  British  consul  at  Havana  during  the  absence 

623 


Vol.  XXII,  p.  72  (GRIGGS) 

of  the  United  States  consular  officers  may  be  accepted  by  the  authorities  of  the 
United  States,  provided  this  duty  is  voluntarily  performed  by  such  oflBcer  with 
the  consent  of  the  British  government. 

Department  of  Justice, 

May  6,  1898. 

Sir:  I  have  the  honor  to  acknowledge  the  receipt  of  your  com- 
munication of  May  2,  relative  to  certain  correspondence  passing  be- 
tween the  department  of  state  and  the  Chinese  minister  at  this  capital, 
copies  of  which  have  been  transmitted  to  your  department,  in  the 
course  of  which  inquirj-  was  made  by  the  Chinese  minister  as  to 
whether  certain  Chinese  certificates,  viseed  by  the  British  consul  at 
Havana  during  the  absence  from  Havana  of  the  consular  officers  of 
the  United  States,  would  be  accepted  by  the  proper  authorities  of 
the  United  States.  You  inform  me.  further,  that  the  collector  of 
customs  at  New  York  has  requested  instructions  from  you  as  to  the 
acceptance  of  certificates  issued  to  Chinese  persons  of  the  exempt  class 
by  the  Chinese  consul  at  Havana  but  without  certification  by  the 
consular  officer  of  the  United  States,  and  whether  in  case  it  shall  be 
decided  that  such  certificates  should  not  be  accepted,  certificates 
viseed  by  the  British  consul  at  Havana  should  be  regarded  (73)  as 
sufficient  evidence  to  entitle  the  holders  to  admission  to  this  country, 
and  in  view  of  the  above  facts  and  the  condition  of  affairs  now  exist- 
ing, you  request  my  opinion  as  to  your  authority  to  direct  the  accept- 
ance of  certificates  viseed  by  the  British  consul  at  Havana,  to  whom, 
it  is  understood,  the  consul-general  of  the  United  States  turned  over 
all  matters  affecting  American  interests  prior  to  his  recent  departure 
from  that  city. 

The  certificates  in  question  here  may  be,  so  far  as  the  statement 
of  the  facts  discloses,  the  "original  entry  certificates"  of  merchants 
and  the  other  classes  of  CThinese  subjects  referred  to  in  section  6  of 
the  act  of  May  6,  1882  (as  amended  by  the  act  of  July  5,  1884),  and 
in  article  III  of  the  convention  between  the  United  States  and  China, 
proclaimed  December  8,  1894;  or  they  may  be  the  "return  certifi- 
cates" of  Chinese  laborers  provided  for  in  article  II  of  said  treaty. 
The  question  obviously  does  not  refer  to  the  "residence  certificates" 
required  of  Chinese  laborers  and  allowed  to  Chinese  persons  other 
than  laborers  by  the  act  of  May  5,  1892  (as  amended  by  the  act  of 
November  3,  1893),  although  such  residence  or  registration  certifi- 
cates are  the  basis  undfr  thf  treasury  regulations  of  the  return  certi- 
ficates to  which  certain  Chinese  laborers,  under  the  treaty  of  1894,  are 
entitled.  It  appears,  further,  that  Chinese  merchants  formerly  en- 
gaged in  business  in  this  country  are  not  required  to  take  out  a  re- 
turn certificate  for  use  upon  application  for  re-entrance,  but  shall 

624 


OPINIONS  OF  ATTORNEYS  GENERAL 

establish  their  former  status  as  merchants  here  by  the  testimony  of 
two  creditable  witnesses  other  than  Chinese  (sec,  2,  act  of  1893, 
supra)  ;  and  the  original  entry  of  Chinese  laborers  is  now  absolutely 
prohibited  by  the  act  of  1882,  as  amended,  the  act  of  1892,  and  the 
treaty  of  1894,  and  their  return  entry  is  allowed  only  upon  the  strict 
compliance  with  the  terms  of  the  said  treaty  and  the  regulations 
framed  thereunder  (21  Op.,  424).  The  certificates  referred  to  in 
your  queries  may  therefore  embrace  the  original  entry  certificates  of 
merchants  and  other  exempt  classes  and  the  return  certificates  of 
laborers  under  the  treaty. 

Your  request  does  not  impose  upon  me  the  duty  of  considering 
the  terms  and  requirements  on  which  the  respective  (74)  certificates 
may  be  granted  or  accepted  by  the  customs  officials  under  the  Chinese 
exclusion  acts,  the  treaty  of  1894,  the  regulations  of  the  state  depart- 
ment and  of  your  department,  and  the  rulings  and  decisions  upon 
the  subject,  except  so  far  as  to  state  generally  that  the  original  entry 
certificates  of  merchants  and  others  exempt  must  be  issued  by  their 
government  or  the  government  where  they  last  resided,  and  the  re- 
turn certificates  of  the  laborers  entitled  to  return  must,  in  the  con- 
tingency contemplated  by  Article  II  of  the  treaty  of  1894,  be  accom- 
panied by  a  certificate  as  to  the  facts  made  by  the  Chinese  consul  at 
the  port  of  departure  for  return  to  the  United  States.  Moreover,  it 
may  be  noted,  that  the  laws  and  regulations  require  that  the  customs 
officials,  in  making  the  return  certificates  based  on  the  registration 
certificate,  shall  make  a  thorough  examination  of  the  facts  and  of  the 
accuracy  of  the  applicant 's  statements,  and  that  the  diplomatic  or  con- 
sular representatives  of  the  United  States,  before  indorsing  certificates 
submitted  to  them,  shall  examine  into  the  truth  of  the  statements  set 
forth  therein,  and  if  the  statements  are  untrue  they  shall  refuse  to  in- 
dorse the  certificate.  It  is  quite  clear  from  the  language  of  section  6  of 
the  act  of  1882,  as  amended — which  is  to  be  read  in  connection  with 
articles  II  and  III  of  the  treaty  of  1894 — that  the  respective  certi- 
ficates embraced  in  this  enquiry  should  be  indorsed  or  viseed  by  the 
diplomatic  consular  representatives  of  the  United  States  in  the  foreign 
country  from  which  the  certificate  issues,  or  at  the  port  or  place  from 
which  the  person  named  therein  is  about  to  depart. 

I  am  therefore  of  the  opinion  that  certificates  issued  to  Chinese 
persons  of  the  exempt  classes  by  the  Chinese  consul  at  Havana,  but 
without  certification  by  a  consular  officer  of  the  United  States,  should 
not  be  accepted  by  the  customs  officials. 

We  thus  come  to  the  last  question  in  the  case,  namely,  whether 
certificates  viseed  by  the  British  consul  at  Havana,  assuming  that  all 
the  other  requirements  of  the  law  have  been  complied  with,  should  be 

625 


Vol.  XXII.  p.  72  (GRIGGS) 

regarded  as  sufficient  evidence  to  entitle  the  holders  to  admission  to 
this  country,  and  this  question  will  be  answered  by  the  answer  to  the 
(75)  question.  To  what  extent  is  the  British  consul  at  Havana  a  con- 
sular ofKcer  of  the  United  States  ? 

By  the  comity  existing  between  friendly  nations  and  under  dip- 
lomatic practice,  governments,  at  the  request  of  friendly  powers,  often 
give  to  their  diplomatic  and  consular  officers  authority  to  take  upon 
themselves,  with  the  consent  of  the  government  within  whose  jurisdic- 
tion they  reside,  the  function  of  representing  such  powers  at  places 
where  the  latter  have  no  consular  officers.  The  United  States  has 
understood  this  authority  to  be  restricted  to  the  extending  of  protec- 
tion to  the  citizens  or  subjects  of  the  friendly  power  and  to  the  grant- 
ing of  the  services  and  good  offices  of  our  representatives,  with  their 
own  consent,  to  meet  what  has  ordinarily  been  a  fortuitous  and  tem- 
porary exigency  of  the  friendly  government.  (United  States  Consu- 
lar Regulations,  1896,  p.  60,  par.  174;  p.  178,  par.  453.) 

However,  an  indication  of  the  proper  course  to  be  pursued  in 
this  matter  may  be  obtained  from  the  laws  relating  to  the  verification 
or  certification  of  invoices.  The  act  of  March  1,  1823  (3  Stat.,  733), 
section  2844,  Revised  Statutes,  expressly  provides  that  such  certifica- 
tion may  be  made  in  the  absence  of  the  consul  or  commercial  agent 
of  the  United  States  by  the  consul  of  a  friendly  nation ;  or  if  there  is 
no  such  consul  in  the  country,  by  two  merchants;  and  although  the 
customs  administrative  act  of  June  10,  1890,  provides  for  the  authen- 
tication of  invoices  by  the  consul,  vice-consul,  or  commercial  agent  of 
the  United  States  of  the  proper  consular  district,  it  is  to  observe  that 
section  29  of  the  latter  act,  repealing  various  prior  provisions  of  law 
on  the  subject,  does  not  repeal  section  2844,  although  it  repeals  sec- 
tions 2843  and  2845.  While,  therefore,  the  statutes  relating  to  the 
granting  of  certificates  to  Chinese  do  not  contain  provisions  similar 
to  those  in  section  2844,  it  maj'  be  said  that  those  statutes,  so  far  as 
the}'  authorize  the  granting  of  certain  consular  certificates  to  Chinese, 
were  pas.sed  for  the  purpose  of  executing  the  treaties  between  the 
United  States  and  China,  and  that  it  seems  desirable,  so  far  as  con- 
sular action  in  such  a  matter  is  necessary,  that  the  acts  of  the  British 
consuls,  as  the  representatives  of  American  interests  in  the  Spanish 
dominions  during  the  existing  war,  should,  so  far  (76)  as  possible, 
be  accepted  by  our  authorities,  whether  those  consuls  be  considered  as 
acting  United  States  consuls  or  as  British  consuls  acting  for  the 
I'nited  States.  And  the  word  "consul"  is  to  be  understood  to  mean 
any  person  invested  by  the  United  States  with,  and  exercising,  the 
functions  of  consul-general,  vice-consul-general,  consul  or  vice-consul. 
(Sec.  4130,  Rev.  Stat.) 

626 


OPINIONS  OF  ATTORNEYS  GENERAL 

The  request  of  the  friendly  power  implies  the  granting  of  suf- 
ficient authority  by  it  in  the  premises.  But  the  functions  should  be 
accepted  by  the  officer  in  question  and  the  approval  of  his  government 
should  be  signified.  In  the  existing  circumstances  of  the  war  with 
Spain  the  consent  of  its  government  would  not  be  obtained,  but  may 
be  implied  in  view  of  ordinary  diplomatic  practice,  or  may  perhaps, 
for  the  purposes  of  the  present  inquiry,  be  ignored.  The  terms  upon 
which  the  representation  of  the  interests  of  the  United  States  at 
Havana  was  committed  or  intrusted  to  the  British  consul  at  that  city 
were  informal  and  did  not  specifically  include  such  service  as  is  here 
contemplated.  But  while  it  may  generally  be  the  case  that  this 
friendly  representation  is  confined  to  the  extending  of  protection  and 
good  offices,  I  perceive  no  valid  reason  which  forbids  the  British 
consul  in  question — consenting  himself,  and  with  the  approval  of 
his  government — to  perform  such  ordinary  and  routine  duties  of  the 
United  States  consul  as  the  indorsing  or  viseing  of  Chinese  certifi- 
cates; always  providing  that  he  acts  in  such  case  in  accordance  with 
the  strict  requirements  of  our  law  and  the  regulations  thereunder, 

I  therefore  answer  your  last  inquiry,  whether  you  may  properly 
authorize  the  acceptance  of  the  Chinese  certificates  in  question  under 
the  vise  of  the  British  consul  at  Havana  in  the  affirmative. 
Very  respectfully, 

JOHN  W.  GRIGGS. 
The  Secretary  of  the  Treasury. 


Vol.  XXII,  p.  212  (Griggs) 

SEAMEN— DISCHAEGES 

The  master  of  an  American  steamship  requested  the  discharge  of  a  seaman, 
the  latter  joining  in  the  request.  The  log  book  showed  that  on  a  certain  day  the 
sailor  refused  to  work,  alleging  sickness,  which  proved  to  be  intoxication,  and  the 
following  day  he  was  unable  to  work  from  consequent  illness.  For  these  reasons 
the  master  deducted  from  his  wages  four  and  eight  days'  pay,  respectively.  Held, 
The  consul-general  was  justified  in  discharging  the  seaman. 

The  master  of  the  vessel  had  no  legal  right  to  impose  and  collect  the  fines 
indicated,  as  the  entries  in  the  log  book  did  not  amount  to  satisfactory  evidence 
of  unlawful  refusal  or  neglect  to  work  when  required. 

If  the  seaman  was  discharged  because  of  unusual  or  cruel  treatment,  he  is 
entitled  to  the  one  month 's  extra  wages  allowed  by  statute,  and  in  such  cases  the 
consul-general  is  authorized  to  exercise  some  reasonable  discretion  in  determining 
this  extra  allowance,  in  reference  to  actual  or  anticipated  ill  treatment. 

Department  of  Justice, 
September  20,  1898. 
Sir:     I  have  the  honor  to  acknowledge  the  receipt  of  your  com- 

627 


Vol.  XXII,  p.  212  (GRIGGS) 

munication  of  September  6,  inclosing  copy  of  a  dispatch  from  the 
United  States  consul-general  at  Panama,  and  asking  my  opinion  upon 
certain  questions  raised  thereon. 

It  appears  that  on  August  15,  1898,  Capt.  W,  H.  McLean,  master 
of  the  American  steamship  San  Jose,  came  before  the  consul-general 
requesting  the  discharge  of  John  Dowd,  a  coal  passer  on  said  vessel, 
said  Dowd  appearing  and  joining  in  the  request,  which  was  granted. 
The  captain  then  produced  his  log  book,  whereon  were  certain  entries 
to  the  effect  that  on  August  12  Dowd  had  refused  to  work,  alleging 
sicklies.**,  which,  on  examination,  proved  to  be  intoxication,  and  that 
on  the  following  day  he  again  refused  to  work,  being  unable  to  do  so 
from  illness  consequent  on  his  condition  the  preceding  day.  For 
these  offenses  the  master  deducted  from  his  wages  four  days'  pay  and 
eight  days'  pay,  respectively,  amounting  in  all  to  the  sum  of  $14. 
While  the  discharge  was  desired  by  both  master  and  seaman,  the  con- 
sul-general states  that  his  principle  reason  for  discharging  the  latter 
was  the  fact  that  he  felt  it  would  be  unsafe  to  send  the  man  back  to 
the  vessel  owing  to  the  evident  ill  will  displayed  by  the  master  towards 
the  seaman. 

You  ask  me,  first,  w^hether  the  consul-general  acted  correctly  in 
discharging  the  seaman. 

(213)  Section  4580  of  the  Revised  Statutes,  as  amended  by  the 
act  of  June  26,  1884  (23  Stats.,  53)  provides  that— 

"Upon  the  application  of  the  master  of  any  vessel  to  a  consular 
oflBcer  to  discharge  a  seaman,  or  upon  the  application  of  any  seaman 
for  his  own  discharge,  if  it  appears  to  such  officer  that  said  seaman 
•  *  •  is  entitled  to  his  discharge  under  any  act  of  congress  or  ac- 
cording to  the  general  principles  or  usages  of  maritime  law,  as  recog- 
nized in  the  United  States,  such  officer  shall  discharge  said  seaman, 
and  require  from  the  master  of  said  vessel,  before  such  discharge  shall 
be  made,  payment  of  the  wages  which  may  then  be  due  said  seaman." 

A  consular  officer  may  discharge  a  seaman  in  case  of  desertion 
caused  by  unusual  or  cruel  treatment  (act  of  June  26,  1884,  sec.  6)  ; 
also  when  the  seaman  is  unusually  or  cruelly  treated  without  having 
deserted.  (Consular  Regulations,  par.  211.)  When  insubordination 
or  bad  conduct  are  alleged,  the  grounds  on  which  a  seaman  may  be 
discharged  are  generally  such  as  to  amount  to  a  disqualification  and 
show  him  to  be  an  unsafe  or  unfit  person  to  have  on  board  a  vessel; 
and  the  consular  officer  must  satisfy  himself  that  good  and  substantial 
reasons  exist  for  a  discharge  before  granting  the  application.  (Con- 
sular Regulations,  par.  213.) 

In  this  ca.se  the  offenses  charged  against  the  seaman  would  hardly 

628 


OPINIONS  OF  ATTORNEYS  GENERAL 

have  constituted  sufficient  grounds  for  his  discharge  without  his  con- 
sent. A  seaman  is  not  to  be  discharged  for  slight  or  venial  offenses, 
nor  for  a  single  offense  unless  of  a  very  aggravated  character  (The 
Superior,  22  Fed.  Rep.,  927;  Cons.  Reg.  par.  213).  If  the  seaman  is 
charged  with  insubordination,  it  should  satisfactorily  appear  that  he 
is  incorrigibly  disobedient,  and  that  he  persists  in  such  conduct  (The 
T,  F.  Oakes,  36  Fed,  Rep.,  442),  Here,  however,  the  discharge  was 
requested  by  the  seaman  as  well  as  the  master,  and  it  was  therefore 
proper  to  grant  it  if  "according  to  the  general  principles  or  usages 
of  maritime  law  as  recognized  in  the  United  States"  (Act  of  June 
26,  1884,  sec.  2).  As  above  shown,  a  seaman  may  be  discharged  for 
unusual  or  cruel  treatment,  and  while  in  the  present  case  no  cruel 
treatment  is  actually  recorded,  yet  if  the  consul-general  discharged 
Dowd  for  these  reasons,  or  because  he  feared  such  (214)  treatment 
might  supervene,  the  seaman  himself  joining  in  the  application,  your 
first  question  must  be  answered  in  the  affirmative. 

You  next  inquire  whether  the  master  of  the  vessel  has  the  legal 
right  to  impose  and  collect  the  fines  above  mentioned. 

As  shown  by  the  master's  log  book,  Dowd  lost  two  days'  work  as  a 
result  of  his  intoxication  and  consequent  illness,  and  was  thereupon 
fined  twelve  days'  pay  or  $14.  Section  4528,  Revised  Statutes,  pro- 
vides that  a  seaman  is  not  entitled  to  wages  for  any  period  during 
which  he  unlawfully  refuses  or  neglects  to  work  when  required.  In 
the  absence  of  other  authority  permitting  the  imposition  of  such  fines, 
your  question  must  be  answered  in  the  negative.  In  my  judgment  the 
log-book  entries  do  not  amount  to  satisfactory  evidence  of  unlawful  re- 
fusal or  neglect  to  work  when  required. 

Your  third  inquiry  is:  Should  extra  wages  have  been  collected? 
By  section  4600,  Revised  Statutes,  as  amended  by  the  act  of  June 
26, 1884,  a  seaman  who  has  deserted  on  the  ground  of  cruel  or  unusual 
treatment,  and  is  discharged  by  the  consular  officer,  is  entitled  to 
one  month's  pay,  and  this  provision  is  construed  to  apply  to  seamen 
discharged  for  the  same  reason,  but  who  have  not  deserted  (Cons. 
Reg,,  par.  222).  I  am  of  the  opinion  that  if  Dowd  was  discharged  by 
the  consul-general  because  of  unusual  or  cruel  treatment,  he  is  en- 
titled to  the  one  month's  extra  wages  allowed  by  statute,  and  that 
some  reasonable  discretion  is  to  be  permitted  to  the  consular  auth- 
ority in  determining  this  extra  allowance  in  reference  to  actual  or 
anticipated  ill-treatment  and  a  discharge  consequent  thereon. 

Very  respectfully, 

JOHN  W.  GRIGGS. 
The  Secretary  of  State. 


629 


Vol.  XXIII,  p.  93  (GRIGGS) 

Vol.  XXIII,  p.  93  (Griggs) 
ADMINISTRATION— ALIEN  LAW  OF  CUBA— TREATY  OF  PARIS 

Under  article  IX  of  the  treaty  of  Paris,  1898  (30  Stat.,  1759),  a  Spaniard 
born  in  the  j^eninsula,  who  died  in  Cuba  before  the  expiration  of  one  year  from 
the  ratification  of  that  treaty,  was,  in  contemplation  of  the  treaty,  a  Spanish  sub- 
ject at  the  time  of  his  death. 

Article  XI  of  that  treaty  obliges  the  United  States  to  see  that  Spaniards  in 
Cuba  have  the  same  rights  to  appear  before  Cuban  courts  and  pursue  the  same 
course  therein  as  citizens  of  Cuba,  but  it  does  not  make  it  unlawful  for  the  laws 
of  that  country  to  give  them  better  methods  of  appearing  and  proceeding  as  aliens 
or  Spanish  subjects  than  those  enjoyed  by  the  citizens  themselves.  Consequently 
that  article  does  not  prevent  article  44  of  the  alien  law  of  Cuba  from  being  ap- 
plicable to  the  estate  of  Don  Ramon  Marti  y  Buguet,  a  native  of  Tarragona, 
Spain,  and  a  Spanish  subject,  who  died  intestate  at  Baez,  Santa  Clara,  Cuba, 
July  2,  1899. 

Under  article  44  of  said  alien  law,  foreign  consuls  were  authorized  to  be  the 
administrators  and  judges  in  charge  of  the  business  of  settling  estates  and  suc- 
cession to  property  of  aliens  dying  intestate  in  Cuba.  This  privilege  having  been 
denied  the  Spanish  consul  by  the  court  of  Santa  Clara,  that  court  was  without 
jurisdiction  to  administer  the  estate  of  Don  Ramon  Marti  y  Buguet.  To  oust  the 
consul  altogether  and  proceed  without  him  was  to  proceed  without  jurisdiction. 

Department  of  Justice, 
April  26,  1900. 
Sir :     I  have  the  honor  to  acknowledge  the  receipt  of  the  follow- 
ing request  for  an  opinion. 

War  Department, 
Washington,  April  16,  1900. 

Sir:  I  have  the  honor  to  present  a  matter  arising  in  a  court  of 
Cuba  which  seems  to  involve  an  interpretation  of  the  treaty  of  peace 
with  Spain. 

On  July  2,  1899,  one  Ramon  Marti  y  Buguet,  a  native  of  Tarra- 
gona, Spain,  and  a  Spanish  subject,  died  intestate  at  Baez,  Santa 
Clara,  Cuba,  leaving  an  estate.  The  court  of  Santa  Clara,  having 
jurisdir-tion  nndfr  Spanish  law  to  administer  upon  estates  of  persons 
dying  within  its  jurisdiction,  assumed  control  of  said  estate  and  pro- 
ceeded to  administer  thereon  pursuant  to  Spanish  law  for  the  admin- 
istration of  estates  of  deceased  natives  of  Cuba. 

On  the  loth  of  July,  1899,  the  Spanish  consul  at  Cienfuegos,  hav- 
ing learned  of  the  death  of  Marti,  addressed  a  letter  to  the  judge  at 
Santa  Clara,  requesting  that  his  consulate  be  permitted  to  administer 
upon  the  estate  of  the  deceased,  pursuant  to  the  provisions  of  article 
44  of  the  alien  law  put  in  force  in  the  island  of  Cuba  while  Spanish 
dominion  prevailed  therein. 

The  court  refused  to  comply  with  the  request  of  the  Spanish  con- 

630 


OPINIONS  OF  ATTORNEYS  GENERAL 

sul,  and  the  estate  was  administered  upon  in  accordance  with  the  laws 
regulating  the  administration  of  estates  of  deceased  natives  of  the  is- 
land. 

The  Spanish  minister  at  this  capital  calls  the  attention  of  the 
government  of  the  United  States  to  this  matter  and  requests  this  gov- 
ernment to  annul  the  orders  made  regarding  said  estate  by  the  judge 
of  said  court. 

The  questions  thus  presented  appear  to  me  to  be : 

1.  Under  the  provisions  of  the  treaty  of  peace  between  the 
United  States  and  Spain  (December  10,  1898),  did  the  court  of  Santa 
Clara  have  exclusive  jurisdiction  to  administer  upon  the  estate  of 
said  Don  Ramon  Marti,  deceased? 

2.  If  the  said  Don  Ramon  Marti  at  the  time  of  his  death  was  a 
resident  of  Santa  Clara,  Cuba,  did  the  Spanish  consul  (95)  have  the 
right  to  participate  in  the  administration  of  said  estate? 

3.  If  the  request  of  the  Spanish  consul  to  be  allowed  to  par- 
ticipate in  the  administration  of  said  estate  was  improperly  refused 
by  the  court,  did  the  court  thereafter  possess  jurisdiction  to  admin- 
ister upon  said  estate? 

I  have  the  honor  to  request  that  you  will  favor  me  with  your 
opinion  upon  the  matter  above  presented. 

Very  respectfully  yours, 

ELIHU  ROOT, 
Secretary  of  War. 
The  Attorney-General. 

Note. — The  original  papers  in  the  case  are  also  inclosed,  which 
please  return  with  your  reply. 

1075  and  inclosures  1,  3,  4,  5,  6,  7,  and  press  copies. 

The  inclosures  of  your  letter  show  the  following  order  of  the 
judge  of  Santa  Clara,  dated  the  25th  of  July,  1899 : 

"As  it  appears  that  Don  Ramon  Marti  y  Buguet,  a  native  of 
Tarragona,  died  on  the  2d  instant,  in  the  precinct  of  Baez,  belonging 
to  this  judicial  district,  without  leaving  any  relatives  or  testamentary 
provisions,  this  court  has  ordered  the  proclamation  of  the  intestacy. 
As  it  appears  that,  on  the  15th  instant,  the  Spanish  consul  at  Cien- 
fuegos  addressed  a  communication  to  this  court,  stating  that,  having 
heard  that  the  Spanish  subject,  Don  Ramon  Marti,  had  died  intes- 
tate, he  has  appointed  Don  Benito  Menduina,  under  article  44  of  the 
alien  law  in  force,  to  draw  up  the  inventory  and  to  carry  out  all  the 
other  proceedings  provided  by  said  law.  Considering:  First,  that 
there  is  no  evidence  to  show  that  Don  Ramon  Marti  had  obtained 
the  registration  required  by  article  9  of  the  treaty  of  Paris,  concluded 

631 


Vol.  XXIII,  p.  93  (GRIGGS) 

between  Spain  and  the  United  States  on  the  10th  December  of  last 
year,  in  order  to  retain  his  Spanish  nationality,  and  (considering) 
that,  until  such  registration  is  proved  by  record,  he  must  be  regarded 
as  a  native  of  Cuba,  and,  consequently,  subject  only  and  exclusively 
to  the  provisions  of  the  law  of  civil  procedure  and  the  civil  code  now 
in  force.  Considering:  that,  even  if  the  reason  hereinbefore  stated 
did  not  exist,  the  pro-  (96)  visions  of  the  alien  law  cited  by  the  Span- 
ish consul  at  Cienfuegos  would  still  not  be  applicable,  because,  under 
article  11  of  the  said  treaty,  Spaniards  residmg  in  territories  over 
which  Spain  has  ceded  or  abandoned  her  sovereignty,  remain  subject, 
in  civil  and  criminal  matters,  to  the  jurisdiction  of  the  country  in 
which  they  reside,  in  accordance  with  the  ordinary  laws  in  force  in 
such  territories,  and  must  appear  and  plead  in  the  same  manner  as 
the  citizens  of  the  country  in  which  they  reside.  In  view  of  the  arti- 
cles of  the  treaty  of  Paris,  it  is  declared  that  the  intervention  of  the 
Spanish  consul  at  Cienfuegos  in  these  proceedings  cannot  be  permit- 
ted, and  it  is  ordered  that  he  be  notified  of  this  decision  by  a  court- 
eous note." 

An  examination  of  Article  IX  of  the  treaty  of  Paris  shows  that 
Spaniards  residing  in  the  ceded  or  relinquished  territories  were  to 
have  a  year  ^^athin  which  to  make  up  their  minds  whether  to  pre- 
serve, not  acquire,  Spanish  nationality,  and  I  think  there  is  no  doubt 
that  a  Spaniard,  born  in  the  peninsula,  who  died  in  Cuba  before  the 
expiration  of  that  year,  was,  in  the  contemplation  of  the  treaty,  a 
Spanish  subject  at  the  time  of  his  death. 

Article  XI  of  the  treaty,  relied  upon  by  the  judge,  is,  in  the  Eng- 
lish copy,  as  follows: 

"The  Spaniards  residing  in  the  territories  over  which  Spain  by 
this  treaty  cedes  or  relinquishes  her  sovereignity  shaU  be  subject,  in 
matters  civil  as  well  as  criminal,  to  the  jurisdiction  of  the  courts  of 
the  countrj^  wherein  they  reside,  pursuant  to  the  ordinary  laws  gov- 
erning the  same;  and  they  shall  have  the  right  to  appear  before  such 
courts,  and  to  pursue  the  same  course  as  citizens  of  the  country  to 
which  the  courts  belong." 

The  first  part  of  this  article  treats  of  the  position  of  Spanish  resi- 
dents when  proceeded  again.st  in  court:  the  latter  provides  implements 
for  their  use.  The  former  subjects  them  as  defendants  to  the  tri- 
bunals, according  to  the  ordinary  laws  which  may  regulate  the  com- 
petency of  the  tribunals  (leyes  comunes  que  regulen  su  competencia)  ; 
the  latter  places  at  their  disposal,  though  aliens,  the  right  to  appear 
before  the  tribunals  (comparencia  en  juicio)  according  to  (97)  the 
same  laws  of  procedure  (forma)  and  carrying  on  the  same  course  of 
pleading  and  practice  (procedimientos),  as  citizens  of  the  country. 

632 


OPINIONS  OP  ATTORNEYS  GENERAL 

In  so  placing  at  their  disposal  the  free  right  to  appear  and  pro- 
ceed like  citizens,  I  do  not  understand  that  the  treaty  intended  to 
make  it  unlawful  to  give  them  better  methods  of  appearing  or  pro- 
ceeding, as  alien  parties  or  as  Spanish  residents,  in  addition  to  those  of 
citizens.  The  provision  was  for  their  benefit — they  were  to  be  allowed, 
at  least,  the  same  ''forma"  and  same  "procedimientos"  as  citizens. 
On  the  other  hand,  there  is  still  less  reason  to  say  that  as  defendants 
they  could  not  be  subjected  to  any  laws  regulating  the  jurisdiction 
of  the  courts  except  those  concerning  cases  between  citizens  of  the 
country.  The  first  part  of  Article  XI  says  nothing  of  citizens  of  the 
country.  It  says  they  shall  be  subject  to  the  tribunals  according  to 
the  ordinary,  the  usual  laws  (comunes)  concerning  their  compentency 
or  jurisdiction. 

What  is  meant  by  ordinary  or  usual?  It  was  usual  in  every  one 
of  the  countries  mentioned  to  have  laws  concerning  aliens,  laws  which 
incidentally  affected  the  competency  of  the  courts.  Article  IX  of  the 
treaty  alludes  to  these  long-familiar  laws  and  the  possibility  of  the 
others  to  be  enacted.  Such  as  these,  in  my  opinion,  are  not  excluded 
by  the  word  ordinary  (comun). 

Spanish  residents,  at  the  time  of  the  making  of  the  treaty,  were 
somewhat  uneasy  lest  they  should  be  persecuted,  and  desired  to  be 
guaranteed  that  a  proper  course  of  procedure  would  be  followed  in 
criminal  and  civil  actions  against  them ;  but  they  expected  to  be  aliens, 
subjects  of  a  foreign  sovereign,  and  to  be  treated  by  the  laws  as  such. 
They  desired  to  be  subjected  to  the  tribunals  only  as  other  aliens 
might  be;  to  the  ordinary  tribunals  acting  without  special  authority 
directed  against  them. 

Article  47  of  the  alien  law,  which  denied  any  special  fuero 
to  aliens  (not,  as  translated,  "special  right  or  privilege"),  operated 
to  confirm  a  transfer  of  aliens  ( extra jeros)  in  the  provinces  from  the 
old  fuero  de  extranjeria  and  other  special  fueros  (e.  g.,  of  war  and 
marine)  to  the  same  courts  to  (98)  which  Spaniards  were  subject, 
"according  to  the  cases,"  certainly  without  any  purpose  by  so  doing 
to  make  them  cease  to  be  aliens  or  to  prevent  the  interposition  in  ad- 
ministrations of  their  respective  consuls;  and  I  think  it  was  as  little 
the  intent  of  the  provisions  of  Article  XI  of  the  treaty  to  exclude 
that  interposition.  The  article  forbids  the  establishment  of  the  old 
fuero  of  aliens  and  that  of  a  new  fuero  of  Spaniards,  but  not  all  laws 
affecting  the  business  concerning  aliens,  which  may  come  into  the 
ordinary  courts  of  fueros  "according  to  the  cases."  Such  a  treaty 
provision  might  even  be  unconstitutional  and  void. 

The  reasons  given  in  1868  and  1869  for  the  general  abondonment 
of  special  fueros  for  the  ordinary  or  common  fuero  were : 

633 


Vol.  XXIIL  p.  93  (GRIGGS) 

"In  those  regions  (colonies),  as  in  Spain,  the  diversity  of  fueros 
paralyzes  the  march  of  the  administration  of  justice  by  the  numerous 
jurisdictions  (competeucias)  to  which  it  gives  rise,  disorganizes  the 
judicial  hierarchy,  renders  impossible  the  formation  of  a  correct  and 
enlightened  jurisprudence,  and  is  the  cause  at  times  of  contradictory 
judgments  in  identical  cases,  which  diminishes  respect  for  the  law  and 
for  the  tribimals. " 

I  cannot  suppose,  without  manifest  proof,  that  the  United  States 
were  stipulating  to  cripple  permanently  in  Porto  Rico  and  the  Philip- 
pines, and  (by  persuasion)  in  Cuba,  the  vital  power  to  make  and 
judicially  enforce  laws  concerning  alien  inhabitants. 

It  must  be  remembered  that,  so  far  as  Cuba  is  concerned,  this 
Article  XI  does  not  bear  the  same  relation  to  the  alien  law  as  though 
the  latter  were  an  act  of  congress.  The  treaty  is  an  agreement  be- 
tween Spain  and  the  United  States;  supreme  law  for  and  over  the  lat- 
ter, but  not  for  and  over  Cuba.  It  obliges  us,  while  acting  in  that 
country,  to  see  to  it  that  the  Spaniards  there  are  treated  as  the  Article 
XI  intends;  but  the  alien  law,  while  temporarily  continued  and  en- 
forced by  the  power  of  the  United  States,  is  rather  the  law  of  and 
for  another  country.  It  is  an  old  law  in  Cuba,  and  is  doubtless  in- 
tended to  be  left  in  Cuba  when  we  and  our  treaty  are  gone. 

In  my  opinion,  then,  there  is  no  reason  to  say  that  Article  (99) 
XI  of  our  treaty  prevents  article  44  of  the  alien  law  of  Cuba  from 
being  applicable  to  the  estate  of  Don  Ramon  Marti  y  Buguet. 

Both  of  the  conclusions  of  the  court  at  Santa  Clara,  therefore, 
as  I  think,  proceeded  from  erroneous  views  of  the  treaty  of  1898. 

Your  third  question  is: 

"If  the  request  of  the  Spanish  consul  to  be  allowed  to  participate 
in  the  administration  of  said  estate  was  improperly  refused  by  the 
court,  did  the  court  thereafter  possess  jurisdiction  to  administer  upon 
said  estate?" 

At  first  view  this  seemed  to  me  a  question  so  exclusively  of 
Spanish  civil  law,  with  v.'hich  the  secretary  of  justice  and  the  courts 
of  Cuba  are  familiar,  that  I  was  disposed  to  suggest  that  it  be  referred 
to  them  for  consideration,  in  the  light  of  the  views  concerning  the 
treaty  hereinbefore  set  forth.  But  as  I  perceived  from  the  inclosures 
of  your  letter  that  two  secretaries  of  justice  and  some  local  official  at- 
torneys in  Cuba  have  had  this  matter  under  consideration,  and  as  I 
recognized  that  the  international  aspect  of  it  might  render  it  difficult 
for  the  question  to  be  determined  by  the  familiar  rules  of  the  Spanish 
law  concerning  appeals,  proceedings  in  cassation,  decisions  between 
conflicting  jurisdictions,  etc.,  it  seemed  to  me  better  to  attempt  to  give 
a  direct  answer  to  your  inquiry. 

6.34 


OPINIONS  OF  ATTORNEYS  GENERAL 

An  examination  of  the  original  Spanish  of  the  alien  law,  article 
44  (of  which  you  inclosed  a  translation),  makes  it  clearer  that  the 
first  paragraph  of  that  article  aims  at  the  preservation  of  the  property 
for  the  benefit  of  the  heirs,  rather  than  the  exercise  of  the  judicial 
power  of  Cuba  in  determining  who  may  be  the  heirs  or  determining 
any  other  question  concerning  the  estate. 

Who,  then,  is  expected  by  the  alien  law  to  determine  such  ques- 
tions— the  consul,  the  local  judge,  or  both?  If  the  consul  is  to  have 
any  judicial  function  in  the  matter,  is  he,  with  the  local  judge,  to 
constitute  a  tribunal  exercising  the  judicial  power  of  Cuba;  is  he  to 
exercise  the  judicial  power  of  his  ovra  coimtry  and  wholly  exclude  the 
local  judge  from  judicial  action,  or  is  the  consul  to  exercise  the  judi- 
cial power  of  his  own  country  upon  certain  questions  and  to  be  the 
admin- ( 100)  istrator  as  an  officer  of  his  own  country,  and  the  judge, 
with  regard  to  other  questions,  to  step  in  and  exercise  the  judicial 
power  of  Cuba  ? 

It  seems  to  me  that  some  light  may  be  thrown  upon  these  ques- 
tions by  articles  42,  43,  and  45  of  the  alien  law,  articles  42  and  43 
speaking  (in  the  original  Spanish)  of  demands  giving  rise  to  a  special 
set  of  questions,  and  article  45  providing  that  in  intestate  proceedings 
the  Spanish  courts  shall  have  jurisdiction  only  of  those  demands.  In 
the  translation  of  the  alien  law  which  you  sent  me  the  word  "de- 
mands" is  omitted  from  articles  42  and  43,  and  your  translation  of 
them,  and  of  articles  44  and  45,  is  as  follows : 

"Art.  42.  They  shall  also  be  subject  to  said  laws  and  courts  in 
all  suits  instituted  by  or  against  them  for  the  fulfillment  of  obliga- 
tions contracted  within  and  outside  of  Spain  in  favor  of  Spaniards,  or 
which  involve  the  ownership  or  possession  of  property  situated  in 
Spanish  territorJ^ 

"Art.  43.  The  Spanish  tribimals  shall  also  have  jurisdiction  over 
and  shall  take  cognizance  of  suits  between  aliens  brought  before  them, 
and  which  involve  the  fulfilment  of  obligations  contracted  or  to  be  ful- 
filled in  Spain. 

"Art.  44.  In  the  case  of  an  alien  dying  intestate,  the  judicial 
authority  of  the  town,  in  which  the  death  occurs  shall,  together  with 
the  nearest  consul  of  the  nation  to  which  the  deceased  belonged,  or 
with  the  person  appointed  by  the  consul  in  his  stead,  take  an  inven- 
tory of  the  property  and  goods  and  shall  take  the  necessary  steps  to 
have  the  same  placed  under  custody  and  at  the  disposal  of  the  heirs, 

"Should  the  alien  be  a  resident,  and  should  he  die  outside  of 
his  domicile,  the  judge  of  the  latter,  to  whom  notice  shall  be  sent  by 
the  judge  of  the  place  where  the  death  occured,  shall  fulfill  the  pro- 

635 


Vol.  XXIII,  p.  93  (GRIGGS) 

visions  of  the  foregoing  paragraph  with  regard  to  the  property  and 
effects  of  the  deceased  existing  there. 

' '  Should  there  be  no  consul  in  the  town  where  the  death  occured 
or  in  the  domicile,  the  judicial  authority,  while  awaiting  the  arrival 
of  the  consul,  whom  he  shall  advise  immediately,  or  of  his  delegate, 
shall  only  take  the  measures  necessary  for  the  custody  of  the  property 
and  of  the  goods. 

"Art.  45.  In  intestate  as  well  as  in  testamentary  successions 
(101)  of  aliens,  the  Spanish  courts  shall  have  cognizance  only  of  the 
claims  and  demands  referred  to  in  the  foregoing  articles." 

Further  light,  I  think,  can  be  thrown  upon  the  questions  by  an 
examination  of  two  treaties,  the  making  of  which  closely  proceeded 
the  alien  law  of  1870,  one  of  Spain  with  Franch  (A.  D.  1862)  and  the 
other  of  Spain  with  Italy  (A.  D.  1867),  I  quote  three  articles,  which 
are  substantially  the  same  in  both  treaties : 

' '  XVII.  In  case  of  the  decease  of  any  subject  of  one  of  the  con- 
tracting parties  in  the  territory  of  the  other,  the  local  authorities  must 
give  immediate  notice  to  the  consul-general,  consul,  vice-consul,  or 
consular  agent  in  whose  district  the  decease  has  occured,  and  they,  on 
their  part,  must  give  the  same  notice  to  the  local  authorities  when  the 
decease  comes  to  their  knowledge  first. 

"If  an  Italian  in  Spain  or  a  Spaniard  in  Italy  should  die  with- 
out making  a  will  or  without  appointing  a  testamentary  executor;  or 
if  the  legitimate  or  testamentary  heirs  should  be  minors,  incapable,  or 
absent,  or  if  the  testamentary  executors  appointed  should  be  incap- 
able, or  should  not  be  found  in  the  place  where  the  property  has  been 
left,  the  consuls-general,  consuls,  and  consular  agents  of  the  deceased's 
nation  shall  have  the  right  of  proceeding  successively  to  the  following 
operations : 

"1.  To  affix  seals,  ex  officio  or  at  the  request  of  the  parties  in- 
terested, on  all  the  movable  property  and  papers  of  the  deceased,  giv- 
ing notice  of  this  operation  to  the  competent  local  authority,  who 
may  be  present  and  affix  his  own  seals  also. 

"These  soals,  as  well  as  those  of  the  consular  agent,  must  not  be 
removed  without  the  consent  of  the  local  authority.  Nevertheless,  if, 
after  a  notice  addressed  by  the  consul  or  vice-consul  to  the  local  auth- 
ority, inviting  him  to  bo  present  at  the  removal  of  the  double  seals, 
he  should  not  appear  within  forty-eight  hours  from  the  time  of  re- 
ceiving the  notice,  the  said  agent  may  proceed  to  the  operation  by 
himself. 

"2.  To  draw  up  the  inventory  of  all  the  goods  and  effects  of 
the  deceased,  in  the  presence  of  the  local  authority,  if  he  has  attend- 
ed in  consequence  of  the  aforesaid  notification. 

636 


OPINIONS  OF  ATTORNEYS  GENERAL 

(102)  "The  local  authority  shall  put  his  signature  to  the  re- 
ports drawTi  up  in  his  presence,  and  shall  have  no  right  to  demand  fees 
of  any  kind  for  his  official  intervention  in  said  matters. 

"3,  To  provide  for  the  sale  at  public  auction  of  all  the  movable 
effects  of  the  estate  which  may  deteriorate  and  of  those  which  may  be 
difficult  to  preserve,  as  well  as  of  the  collections  or  effects  for  the  dis- 
posal of  which  there  may  be  favorable  opportunities. 

"4.  To  deposit  in  a  secure  place  the  effects  and  securities  in- 
ventoried ;  to  keep  the  amoimt  of  the  debts  and  incomes  received  and 
the  proceeds  of  the  sales  in  the  consular  house,  or  to  intrust  them  to 
some  merchant  who  gives  good  security.  In  both  cases  he  must  pro- 
ceed in  concurrence  with  the  local  authority  who  has  taken  part  in 
the  previous  operations,  if,  after  the  summons  referred  to  in  the  fol- 
lowing paragraph,  subjects  to  the  country,  or  of  a  third  power,  should 
represent  themselves  as  interested  in  the  estate. 

"5.  To  annoimce  the  death  which  has  taken  place  and  to  sum- 
mon, by  means  of  the  newspapers  of  the  place  and  of  the  deceased's 
country,  such  persons  as  may  have  claims  against  the  estate,  in  order 
that  they  may  send  in  their  respective  claims  duly  approved  within 
the  legal  period  of  each  country. 

"If  creditors  of  the  estate  should  appear,  their  debts  must  be 
paid  in  fifteen  days  from  the  completion  of  the  inventory,  if  there 
should  be  ready  money  enough  for  the  purpose;  and  if  not,  as  soon 
as  the  funds  can  be  obtained  in  the  most  convenient  manner,  or  with- 
in the  period  fixed  by  common  consent  between  the  consul  and  the 
majority  of  those  interested.  If  the  respective  consuls  should  refuse 
payment  of  one  or  more  of  the  claims  brought  in,  alleging  the  insuf- 
ficiency of  the  property  of  the  estate  to  satisfy  them,  the  creditors 
may,  if  they  consider  it  advantageous  to  their  interest,  demand  of 
the  competent  authority  the  power  of  constituting  themselves  as  a 
body. 

"Such  a  declaration  having  been  obtained  by  the  legal  means 
established  in  each  of  the  two  nations,  respectively,  the  consuls  or 
vice-consuls  must  immediately  consign  to  the  judicial  authority  or  to 
the  syndics  of  bankruptcy,  as  the  case  may  be,  all  the  documents,  ef- 
fects and  securities  be- (103) longing  to  the  estate;  and  the  said  agents 
will  remain  as  the  representatives  of  the  heirs  who  are  absent,  minors 
or  incapable. 

"6.  To  administer  and  liquidate  the  estate,  either  themselves 
or  through  a  person  appointed  on  their  responsibility,  the  local  auth- 
orities having  no  power  to  interfere  in  these  operations  unless  subjects 
of  the  country  or  of  a  third  power  should  have  to  prove  rights  upon 

fe.  637 


Vol.  XXIII,  p.  93  (GRIGGS) 

the  estate  itself,  and  that  in  such  case  difficulties  should  arise  chiefly 
proceeding  from  some  claim  which  gives  rise  to  discussion  among  the 
parties ;  the  consuls-general,  consuls,  vice-consuls,  or  consular  agents 
having  no  right  to  decide  therein,  it  must  be  brought  before  the  tri- 
bunals of  the  country,  whose  place  it  is  to  provide  for  and  settle  such 
difficulties. 

"The  said  consular  agents  will  then  act  as  representatives  of 
the  estate ;  that  is,  they  will  retain  the  administrations  and  the  right 
of  definitely  liquidating  the  inheritance,  as  well  as  that  of  proceeding 
to  the  sale  of  the  effects  in  the  periods  before  prescribed.  They  will 
take  care  of  the  interests  of  the  heirs,  with  the  power  of  appointing 
advocates  to  maintain  their  rights  before  the  tribunals;  and  it  is 
understood  that  they  must  furnish  all  the  papers  and  documents 
necessarj'  to  explain  the  question  which  is  submitted  to  their  judg- 
ment. 

"When  the  sentence  has  been  pronounced,  the  consuls-general, 
consuls,  vice-consuls,  or  consular  agents  must  execute  it,  unless  they 
interpose  an  appeal ;  and  they  will  also  continue  of  full  right  to  carry 
on  the  liquidation  which  was  suspended  until  judgment  had  been 
passed. 

"7.  To  consign  the  inheritance  or  the  produce  thereof  to  the 
lawful  heirs  or  to  their  agents,  but  not  until  the  expiration  of  the 
term  of  six  months  from  the  date  on  which  the  announcement  of  the 
death  was  published  in  the  newspapers. 

"8.  To  constitute,  whenever  it  may  be  necessary,  a  guardianship 
or  trusteeship  according  to  the  laws  of  their  own  country. 

"XVIII.  If  an  Italian  die  in  Spain  or  a  Spaniard  in  Italy,  at 
a  place  where  there  is  no  consular  agent  of  his  nation,  the  competent 
local  authority  shall  proceed,  in  accordance  with  the  laws  of  his  coun- 
try, to  make  an  inventory  of  the  effects  (104)  and  to  liquidate  the 
property-  left,  under  the  obligation  of  rendering  an  account  as  soon 
as  it  is  possible  of  the  results  of  his  operations  to  the  respective  em- 
bassy or  legation,  or  to  the  consulate  or  vice-consulate  nearest  to  the 
place  where  the  property  has  been  left ;  but  from  the  instant  that  the 
consular  agent  nearest  to  the  place  where  the  property  has  been  left; 
makes  his  appearance,  either  in  person  or  by  means  of  any  delegate, 
the  intervention  of  the  local  authority  must  be  in  accordance  with  the 
provision  in  Article  XVII  of  this  convention. 

"XIX.  The  consuls-general,  consuls,  vice-consuls,  and  consular 
agents  of  both  nations  shall  attend  exclusively  to  the  inventories  and 
other  precautionary  measures  for  the  preservation  of  the  hereditary 
property  left  by  sailors  of  their  nation  dying  ashore  or  on  board 

638 


OPINIONS  OF  ATTORNEYS  GENERAL 

the  vessels  of  their  eomitry,  whether  during  the  voyage  or  in  the  port 
of  their  arrival." 

It  is  clear  that  under  this  treaty  system  between  these  three  Latin 
countries — Spain,  Italy  and  France — the  consul  is  to  exercise  an  ex- 
traterritorial judicial  power  and  to  be  the  real  administrator  of  the  es- 
tate ;  but  that  disputes  in  which  the  country  where  the  death  occured 
has  some  special  interest,  as  where  its  own  people  or  the  people  of  a 
third  country  whom  it  should  protect  are  concerned,  are  to  be  carved 
out  of  his  jurisdiction  and  settled  by  the  local  judicial  authority,  leav- 
ing him  to  resume  his  functions  when  these  special  questions  have 
been  determined. 

Similar  treaties  had  anciently  been  made  with  England.  Thus, 
in  Warden 's  Consular  Establishment,  page  252,  we  read : 

"In  a  treaty  with  Spain,  made  in  1667,  it  was  stipulated,  that  the 
goods  and  estates  of  Englishmen,  dying  without  will  in  that  kingdom, 
were  to  be  put  into  inventory,  with  their  papers,  writings,  and  books 
of  accounts,  by  the  consul  or  other  public  minister  of  the  King  of 
Great  Britain,  and  placed  in  the  hands  of  two  or  three  merchants 
named  by  the  said  consul  or  public  minister,  to  be  kept  for  the  pro- 
prietors or  creditors;  and  that  neither  the  Cruzada,  nor  any  other 
judiatory  whatsoever,  should  intermeddle  therein;  which,  (105)  also, 
in  the  like  case  was  to  be  observed  in  England,  toward  the  subjects 
of  the  King  of  Spain. ' ' 

Still  further  light  is  shed  upon  our  questions,  I  think,  by  the  con- 
sular system  of  Spain,  in  which  her  consuls  in  foreign  countries  are 
authorized  to  exercise  all  the  powers  of  courts  of  first  instance,  if  per- 
mitted to  do  so  by  the  laws  of  the  country  to  which  they  are  ac- 
credited. 

I  cannot  but  think,  from  these  and  similar  considerations,  that 
the  privilege  intended  to  be  accorded  to  foreign  consuls  by  article  44 
of  the  alien  law  was  not  merely  to  be  present  and  see  that  the  local 
judicial  authority  did  what  was  proper,  nor  to  exercise  any  part  of 
the  judicial  power  of  the  country  to  which  the  consul  was  accredited, 
but  to  be  the  administrator  and  judge  in  charge  of  the  business  of 
settling  the  estate  and  succession. 

It  seems  to  me,  therefore,  that  to  oust  the  consul  altogether,  as 
was  done  in  the  matter  of  the  estate  of  Don  Ramon  Marti  y  Buguet, 
and  proceed  without  him,  was  to  proceed  without  jurisdicion,  and  I 
herefore  answer  your  third  question  in  the  negative. 

Respectfully, 

JOHN  W.  GRIGGS. 
The  Secretary  of  War. 


639 


Vol.  XXIII,  p.  112  (GRIGGS) 

Vol.  XXIII,  p.  112  (Griggs) 
PORTO  RICO— EXHORTO   OR  LETTER  ROGATORY 

Department  of  Justice, 

May  7,  1900. 
(114)  Extract)  In  the  courts  of  Great  Britain  a  Span- 
ish consul  within  his  district  was  instructed,  under  the  royal  orders 
of  Spain,  to  obtain  the  testimony  of  voluntary  witnesses  by  proceed- 
ings before  a  magistrate,  but  to  attend  to  citations  himself.  This  was 
expressly  upon  the  ground  of  the  failure  of  English  institutions  to 
authorize  the  courts  to  take  such  proceedings,  and  was,  when  we  con- 
sider that  the  Spanish  consul  is.  so  far  as  permitted  by  the  local  law, 
a  judge  of  the  peace  and  a  judge  of  first  instance,  merely  making  use 
of  a  second  Spanish  court  and  not  of  a  foreign  court. 

Respectfully, 

JOHN  W.  GRIGGS. 
The  Secretary  of  War. 


Vol.  XXIII,  p.  400  (Griggs) 
AMERICAN  SEAMEN— FILIPINOS— CUBANS— PORTO  RICANS 

Seamen  born  in  the  Philippine  Islands,  being  persons  whose  civil  and  political 
status  is,  by  the  treaty  of  peace  with  Spain  (30  Stat.,  1759),  declared  to  be  a 
matter  for  the  future  determination  by  congress,  are  not  citizens  of  the  United 
States  ^-ithin  the  meaning  of  any  statute  concerning  seamen  or  any  other  statute 
or  law  of  the  United  States. 

The  same  thing  is  true,  in  a  more  obvious  way,  and  with  greater  force,  of 
Cuban  seamen. 

A  Porto  Rican  engaged  in  the  occupation  of  a  seaman  in  the  American  mer- 
chant marine,  including  that  of  Porto  Rico,  is  an  American  seaman  within  the 
meaning  of  the  statutes  relating  to  relief  by  consuls,  in  view  of  the  provisions  of 
sections  9  and  14  of  the  act  of  April  12,  1900  (31  Stat.,  79),  providing  a  civil 
government  for  Porto  Rico. 

All  persons  shipped  in  the  United  States  on  an  American  vessel  have  been, 
according  to  the  practice  of  the  government,  treated  as  entitled  to  relief  under 
the  laws  relating  to  seamen. 

A  place  at  which  vessels  of  the  United  States  receive  their  character  as  such, 
and  where  American  shipping  commissioners  ship  the  crews  of  such  vessels,  is  to 
be  regarded  as  a  place  such  that  a  person  domiciled  there  and  engaging  in  the  oc- 
cupation of  a  seaman  or  vessels  of  that  character,  is  an  American  seaman  within 
the  intent  of  the  provisions  for  the  relief  and  protection,  in  foreign  countries,  of 
American  seamen. 

(401)  Department  of  Justice, 

February  19,  1901. 
Sir:     I  have  received  your  letters  enclosing  communications  from 
the  British  ambassador  at  this  capital  and  from  the  United  States 
consul  at  Marseilles,  concerning  Filipino  and  other  seamen. 

640 


OPINIONS  OF  ATTORNEYS  GENERAL 

You  desire  my  opinion  concerning  the  status  of  Filipino  seamen 
on  board  British  vessels  arriving  at  the  ports  of  the  United  States, 
in  order  that  British  consuls  may  know  whether  they  may  be  dis- 
charged at  such  ports,  and  as  to  the  status  of  Filipino,  Porto  Rican, 
and  Cuban  seamen,  in  order  that  our  consuls  abroad  may  know  what 
treatment  to  accord  them. 

Cases  recently  argued  in  the  supreme  court  of  the  United  States 
and  now  under  consideration  there  involve  in  some  respects  the  ques- 
tion of  the  relations  which  Porto  Rico  and  the  Philippine  Islands  sus- 
tain to  the  United  States ;  and  may,  possibly,  in  their  decision  call  for 
some  expression  on  the  general  subject  of  the  civil  status  of  the  na- 
tive inhabitants  of  those  islands.  I  do  not,  therefore,  deem  it  neces- 
sary or  expedient  to  enter  upon  any  general  discussion  of  this  subject 
in  its  constitutional  aspect.  In  the  argument  addressed  by  me  to  the 
court  on  behalf  of  the  government  in  the  cases  referred  to,  I  discussed 
the  subject  at  considerable  length,  asserting  the  principle  that  the 
treaty-making  power,  under  the  constitution,  may  acquire  territory 
without  admitting  the  inhabitants  to  the  rights  and  status  of  citizens 
of  the  United  States,  and  that  by  the  treaty  of  Paris  the  native  in- 
habitants of  Porto  Rico  and  the  Philippine  Islands  were  expressly 
intended  to  be  left  out  of  the  pale  of  United  States  citizenship,  and 
their  civil  status  to  be  left  to  the  future  action  of  congress. 

As  to  the  native  inhabitants  of  the  Philippine  Islands,  no  action 
has  as  yet  been  taken  by  congress,  and  therefore  those  people  remain 
in  the  same  condition,  in  this  respect,  as  they  were  when  the  treaty 
was  ratified. 

The  act  for  the  temporary  government  of  Porto  Rico  did  not 
make  the  native  inhabitants  of  that  island  citizens  of  the  United 
States,  but  defined  them  to  be  citizens  of  Porto  Rico. 

It  may  be  taken,  therefore,  as  imdisputed  that  the  executive,  the 
treaty -making,  and  the  legislative  branches  of  the  (402)  government, 
regard  these  native  inhabitants,  both  as  to  Porto  Rico  and  the  Philip- 
pines, as  not  vested  with  the  rights  or  admitted  to  the  status  of  citizens 
of  the  United  States  in  a  domestic  sense. 

"With  the  correctness  of  this  view,  and  this  course  of  executive 
and  legislative  action,  I  fully  agree ;  and  until  that  view  is  judicially 
declared  to  be  erroneous,  all  official  action  by  the  executive  depart- 
ments should  conform  to  the  same  course  heretofore  followed. 

Referring,  therefore,  to  the  questions  suggested  by  the  British 
ambassador  and  our  consul  at  Marseilles,  I  have  to  say : 

1.  That  seamen  born  in  the  Philippine  Islands,  being  persons 
whose  civil  and  political  status  is  by  the  treaty,  which  is  the  latest  ex- 
pression of  the  supreme  law  of  the  land,  declared  to  be  a  matter  for 

641 


Vol.  XXIII.  p.  400  (GRIGGS) 

future  determinatiou  by  congress,  are  not  citizens  of  the  United 
States  within  the  meaning  of  any  statutes  concerning  seamen  or  any 
other  statute  or  law  of  the  United  States.  That  is  to  say,  from  the 
standpoint  of  our  government  they  are  not  citizens  of  the  United 
States  in  any  sense.  They  are  persons  who  are  not  subjects  of  any 
foreign  power,  and  are,  from  an  international  standpoint,  subjects  of 
the  United  States,  or,  to  use  a  term  that  has  been  suggested,  "na- 
tionals." In  a  general  way  our  government  is  responsible  for  them 
and  to  them ;  but  whether  a  government  chooses  to  relieve  or  support 
individuals  who  are  seamen,  or  other  individuals  belonging  in  any 
way  to  the  nation,  is  not  a  question  of  international  law,  but  of  muni- 
cipal law,  which  every  government  makes  to  suit  itself;  and  our  laws 
make  no  provisions  of  that  kind  which  are  intended  to  apply  to  these 
Filipino  seamen. 

2.  The  same  is  true  in  a  more  obvious  way  and  with  perhaps 
greater  force,  if  possible,  of  Cuban  seamen. 

3.  In  the  case  of  Porto  Rico,  the  situation  is  different.  As  to 
the  Porto  Ricans,  congress  has  not  been  silent.  It  has  passed  an  act 
establishing  a  government  in  the  island,  and  in  many  ways  affecting 
the  rights  and  duties  of  the  Porto  Ricans  and  their  relations  with  the 
United  States.    One  section  of  the  act  declares  (sec.  7)  : 

"That  all  inhabitants  continuing  to  reside  therein  who  were 
Spanish  subjects  on  the  eleventh  day  of  April,  eight-  (403)  een  hun- 
dred and  ninety-nine,  and  then  resident  in  Porto  Rico,  and  their 
children  bom  subsequent  thereto,  shall  be  deemed  and  held  to  be  citi- 
zens of  Porto  Rico,  and  as  such  entitled  to  the  protection  of  the  United 
States,  except  such  as  shall  have  elected  to  preserve  their  allegiance 
to  the  Crown  of  Spain  on  or  before  the  eleventh  day  of  April,  nine- 
teen hundred,  in  accordance  with  the  provisions  of  the  treaty  of  peace 
between  the  United  States  and  Spain  entered  into  on  the  eleventh  day 
of  April,  eighteen  hundred  and  ninety-nine;  and  they,  together  with 
such  citizens  of  the  United  States  as  may  reside  in  Porto  Rico,  shall 
constitute  a  body  politic  under  the  name  of  The  People  of  Porto  Rico, 
with  governmental  powers  as  hereinafter  conferred,  and  with  power 
to  sue  and  be  sued  as  such." 

The  obvious  intent  of  congress  is  to  stop  short  of  making  the 
Porto  Rican  a  citizen  of  the  United  States  in  the  full  sense  of  the 
phrase.  But  it  does  not  necessarily  follow  that  the  extension  to  Porto 
Rico  of  the  laws  of  the  United  States,  provided  for  in  section  14  of 
the  organic  act,  was  not  intended  to  extend  to  Porto  Rican  seamen  the 
statutes  of  the  United  States  concerning  the  relief  of  American  sea- 
men. Those  statutes  contemplate  citizens  of  the  United  States,  or 
persons  who  have  declared  their  intention  to  become  such    (R.  S., 

642 


OPINIONS  OP  ATTORNEYS  GENERAL 

2174),  and  foreigners  domiciled  in  the  United  States,  or  shipped  in 
an  American  vessel  in  a  port  of  the  United  States,  and  presumed  to 
be  there  domiciled,  who  act  as  seamen  on  American  vessels.  Matthews 
V.  Off  ley,  3  Sumn.,  115. 

The  fact  of  actual  or  presumed  domicile  seems  to  be  regarded  as 
effective,  in  the  absence  of  full  citizenship,  to  include  a  person  with- 
in the  intent  of  the  statutes  relating  to  the  relief  of  American  sea- 
men. Other  members  of  the  crew  of  an  American  vessel,  while  part 
of  the  crew  and  on  the  vessel,  are  protected  by  and  subject  to  those 
laws  of  the  nation  to  which  the  vessel  belongs,  which  it  has  a  right 
to  pass  upon  the  legal  theory  that  the  vessel  is  a  part  of  that  nation 's 
territory.  But  I  do  not  understand  that  seamen  who  are  actually 
members  of  the  crew  of  an  American  vessel  are  now  in  question.  I 
held,  in  an  opinion  of  July  22,  1898,  that  vessels  from  Hawaiian  ports 
were  subject  to  the  tonnage  tax  upon  arrival  at  American  ports  after 
the  cession  of  (404)  Hawaii,  on  the  ground  that  Hawaiian  vessels, 
having  been  foreign  vessels  prior  to  the  cession  and  when  the  statutes 
concerning  the  tonnage  tax  were  passed,  did  not,  by  the  mere  fact  of 
cession,  cease  to  be  within  the  purview  of  those  statutes  as  foreign 
vessels.  Applying  the  same  principle,  the  Filipinos,  having  been 
foreigners  when  these  statutes  relating  to  the  relief  of  American  sea- 
men were  passed,  and  the  treaty  of  Paris,  instead  of  purporting  to 
apply  those  statutes  to  them,  having  affirmatively  declared  that  their 
civil  rights  and  political  status  were  reserved  for  future  action  by  con- 
gress, cannot  be  regarded  as  within  the  intent  of  these  statutes.  Un- 
questionably they  were  not  when  the  status  was  passed,  and,  equally 
clearly,  the  treaty  did  not  intend  to  apply  the  statutes  to  them. 

I  am  of  the  opinion,  therefore,  that  these  statutes  do  not  apply 
to  a  Filipino  domiciled  in  the  Philippines,  even  when  from  on  board 
an  American  vessel ;  but  I  am  inclined  to  think  that  a  Porto  Rican  en- 
gaged in  the  occupation  of  a  seaman  in  the  American  merchant  ma- 
rine, including  that  of  Porto  Rico,  is  an  American  seaman  within 
the  meaning  of  the  statutes  relating  to  relief  by  consuls. 

It  appears  from  the  consular  regulations  that  hitherto  those  en- 
titled to  relief  have  included  "foreigners  regularly  shipped  in  an 
American  vessel  in  a  port  of  the  United  States ; ' '  seamen  who  are  citi- 
zens of  the  United  States  regularly  shipped  anywhere  in  an  American 
vessel,  those  who  have  declared  their  intention  to  become  citizens  be- 
ing treated  as  such  citizens.  "Whether  or  not  it  was  merely  because 
of  a  presumption  that  a  man  shipped  in  a  port  of  the  United  States 
was  domiciled  in  the  United  States,  the  foreigner  shipped  in  th» 
United  States  seems  to  have  long  since  acquired  a  settled  status  with 
regard  to  these  relief  statutes;  so  that  all  persons  shipped  in  the 

643 


Vol.  XXIII,  p.  400  (GRIGGS) 

United  States  on  an  American  vessel  have  been,  according  to  the 
practice  of  the  government,  treated  as  entitled  to  relief. 

This  being  the  practice,  congress,  in  the  act  creating  a  govern- 
ment for  Porto  Rico,  may  be  regarded  as  having  intended  to  make 
American  seamen  of  Porto  Ricans  who  in  Porto  Rico  become  a  part 
of  the  American  merchant  marine.  Section  14  of  that  act  declares 
that  the  statutory  laws  of  the  (405)  United  States  not  locally  inap- 
plicable are  to  have  "the  same  force  and  effect  in  Porto  Rico  as  in 
the  United  States."  That  this  included  the  laws  concerning  vessels 
of  the  United  States,  concerning  shipping  commissioners,  and  the 
shipping  and  discharge  of  seamen,  is  clearly  to  be  inferred  from  sec- 
tion 9  of  the  same  statute,  both  from  what  it  says  and  from  what  it 
omits  to  say.  That  section  provides  that  the  Commissioner  of  Navi- 
gation shall  make  regulations  "for  the  naturalization  of  all  vessels 
o\Mied  by  the  inhabitants  of  Porto  Rico  on  the  eleventh  day  of  April, 
eighteen  hundred  and  ninety-nine,  and  which  continue  to  be  so  owned 
up  to  the  date  of  such  nationalization,  and  for  the  admission  of  the 
same  to  all  the  benefits  of  the  coasting  trade  of  the  United  States ;  and 
the  coasting  trade  between  Porto  Rico  and  the  United  States  shall  be 
regulated  in  accordance  with  the  provisions  of  law  applicable  to  such 
trade  between  any  two  great  coasting  districts  of  the  United  States. 

Nothing  is  said  of  vessels  subsequently  owned  by  inhabitants  of 
Porto  Rico,  nor  is  anything  said  about  Porto  Rican  vessels  engaged  in 
foreign  trade;  but  unquestionably  it  was  not  intended  to  nationalize 
vessels  owned  on  a  particular  date  and  leave  unnational,  vessels  that 
might  thereafter  be  owned  by  inhabitants  of  Porto  Rico,  or  to  admit 
Porto  Rican  vessels  to  the  specially  privileged  home  trade  and  not  to 
the  foreign-going  trade. 

Section  14  was  supposed  to  provide  for  all  this. 

Giving  a  liberal  construction  to  the  statute,  I  think  it  may  be  said 
that  a  place  at  which  vessels  of  the  United  States  were  to  receive  their 
character  as  such,  and  where  American  shipping  commissioners  were 
to  ship  the  crews  of  such  vessels,  was  regarded  as  a  place  such  that 
a  person  domiciled  there,  and  engaged  in  the  occupation  of  a  seaman 
on  vessels  of  that  character,  would  be  an  American  seaman  within 
the  intent  of  provisions  for  the  relief  and  protection  in  foreign  coun- 
tries of  American  seamen. 

Perhaps  I  should  add  that  the  good  offices  of  our  consuls  can 
very  properly  be  extended  to  the  Filipinos  and  Cubans. 

Very  respectfully, 

JOHN  W.  GRIGGS. 
The  Secretary  of  State. 

644 


OPINIONS  OF  ATTORNEYS  GENERAL 

Vol.  XXIV,  p.  69  (Knox) 

GEEMAN  LETTEES  EOGATOEY— EXECUTION  OF  BY  UNITED  STATES 

COUET 

Department  of  Justice, 

June  9,  1902. 

(70)  (Extract)  The  usual  practice  in  England  and  the  United 
States  has  been  to  take  testimony  abroad  by  open  commission 
issued  from  a  court  of  record  and  directed  to  persons  vested  with  no 
local  judicial  authority  in  the  foreign  country,  who  proceed  as  com- 
missioners of  the  instance  court  to  obtain  voluntary  testimony.  (Whar- 
ton on  the  Conflict  of  Laws  (1882),  sec.  723  et  seq.)  This  method 
was  formerly  the  usual  and  the  only  regular  mode  of  taking  deposi- 
tions in  a  foreign  country.  (Stein  v.  Bowman,  13  Pet.,  209;  Froude 
V.  Froude,  1  Hun.,  76.)  Letters  rogatory  or  requistorial,  drawn  from 
the  civil  law,  have  obtained,  as  a  rule,  on  the  Continent  of  Europe,  and 
are  currently  employed  more  frequently  than  at  an  earlier  day. 
Under  such  letters,  and  by  the  doctrines  of  international  law  respect- 
ing comity,  the  courts  of  each  country  are  held  boimd  to  execute  com- 
missions to  take  evidence,  subject  to  the  proviso  that  the  requirement 
shall  contain  nothing  to  prejudice  national  sovereignty,  and  that  re- 
ciprocity in  such  matters  shall  be  assured. 

It  seems  to  be  well  settled  that  letters  rogatory  are  issued  only 
when  an  ordinary  commission  cannot  be  executed,  that  their  use  rests 
wholly  upon  comity  between  foreign  states,  that  interrogatories  are 
generally  attached  ,  and  that  the  law  of  the  forum  to  which  the  letters 
are  addressed  governs  the  procedure  under  them.  (Whart.  Conf. 
Laws,  ut  supra,;  Nelson  v.  United  States,  1  Pet.  C.  C,  235 ;  Kuehling 
V.  Leherman,  9  Phila,,  160 ;  Doubt  v.  Pittsburgh  B.  B.  Co.,  6  Pa.  Dist. 
Rep.,  238;  sec,  4071,  R.  S.) 

Section  875,  Revised  Statutes,  provides  for  letters  rogatory  from 
United  States  courts  in  suits  in  which  the  United  (71)  States  have 
an  interest;  and  per  contra,  for  letters  rogatory  addressed  from  a 
foreign  court  to  a  circuit  court  of  the  United  States.  And  sections 
4071-4074,  Revised  Statutes,  provide  for  the  taking  of  testimony  in 
this  country,  to  be  used  in  foreign  countries,  in  suits  for  the  recovery 
of  money  or  property  in  which  the  foreign  government  has  an  inter- 
est, either  by  commission  or  letters  rogatory,  under  the  authority  and 
supervision  of  the  district  judge  of  the  district  where  the  witness  re- 
sides. So  that  the  United  States  has  recognized  by  statutory  pro- 
visions and  judicially  the  principle  of  international  comity  involved. 

645 


Vol.  XXIV,  p.  69  (KNOX) 

The  various  states,  either  under  statutes  or  pursuant  to  general  doc- 
trines, reciprocate  with  each  other  and  with  foreign  countries  in  the 
same  manner. 


Very  respectfully, 

P.  C.  KNOX. 


The  Secretary  of  State. 


Vol.  XXIV,  p.  116  (Hoyt) 

GIFTS    FROM    FOREIGN    PRINCE— OFFICER— CONSTITUTIONAL    PRO- 
HIBITION 

The  provision  of  article  1,  section  9,  clause  9  of  the  constitution,  which  for- 
bids the  acceptance,  without  the  consent  of  congress,  by  any  person  holding  any 
office  of  profit  or  trust  under  the  United  States,  of  any  "present,  emolu- 
ment, office,  or  title,  of  any  kind  whatever,  from  any  king,  prince,  or  foreign 
state,  * '  applies  as  well  to  a  titular  prince  as  to  a  reigning  one ;  and  a  simple  re- 
membrance of  courtesy,  even  if  merely  a  photograph,  falls  under  the  inclusion  of 
' '  any  present  of  any  kind  whatever. ' ' 

(117)  T^^s  prohibition  expressly  relates  to  official  persons,  and  does  not 
extend,  under  the  circumstances  outlined,  to  a  department  of  the  government  or  to 
governmental  institutions. 

Department  of  Justice, 
September  8,  1902. 

Sir:  I  have  the  honor  to  respond  to  your  note  of  August  27, 
submitting  for  my  consideration  a  copy  of  a  note  from  the  German 
embassy,  which  communicates  a  list  of  presents  bestowed  by  Prince 
Henry  of  Prussia  on  the  occasion  of  his  recent  visit  to  this  country. 
You  ask  my  opinion  on  the  question  whether  the  constitutional  pro- 
vision which  forbids  the  acceptance,  ^vithout  the  consent  of  congress, 
of  any  ' '  present,  emolument,  office,  or  title,  of  any  kind  whatever,  from 
any  king,  prince,  or  foreign  state,"  may  be  construed  as  applying  only 
to  a  reigning  prince,  in  which  case  the  authority  of  congress  for 
the  delivery  of  these  presents  would  not  be  required.  The  presents 
consi-st  of  portraits  given  to  the  navy  department,  the  military  aca- 
demy and  the  naval  academy,  and  of  a  photograph  to  each  of  several 
military  and  civil  officers  of  the  United  States.  The  provision  of  the 
constitution  is  as  follows : 

"No  title  of  nobility  shall  be  granted  by  the  United  States: 
And  no  person  holding  any  office  of  profit  or  trust  under  them,  shall, 
without  the  consent  of  the  congress,  accept  of  any  present,  emolument, 
office,  or  title,  of  any  kind  whatever,  from  any  king,  prince,  or  foreign 
state."     (Art.  I,  sec.  9,  cl.  9.) 

It  is  evident  from  the  brief  comments  on  this  provision,  and  the 

646 


OPINIONS  OF  ATTORNEYS  GENERAL 

established  practice  in  our  diplomatic  intercourse  (2  Story  on  the  Con- 
stitution, 4th  ed.,  pp.  216,  217;  1  AVliarton's  Int..  Law  Dig.,  sec.  110, 
p.  757),  that  its  language  has  been  viewed  as  particularly  directed 
against  every  kind  of  influence  by  foreign  governments  upon  officers 
of  the  United  States,  based  on  our  historic  policies  as  a  nation.  Al- 
though it  is  manifest  that  the  particular  collocation  of  words  in  the 
constitution,  like  the  words  "any  foreign  prince  or  state"  in  the  neu- 
trality statutes,  refers  chiefly  to  a  foreign  government  and  its  regular 
executive  (cf.  act  January  31,  1881;  21  Stat.,  604),  it  would  not, 
in  my  judgment,  be  sound  to  hold  that  a  titular  prince,  even  if  not  a 
reigning  potentate,  is  not  included  in  the  constitutional  (118)  pro- 
hibition. For  the  phrase  of  the  provision  is  ''any  king,  prince,  or 
foreign  state,"  and  a  titular  prince,  although  not  reigning,  might 
have  the  function  of  bestowing  an  office  or  title  of  nobility  or  decora- 
tion, which  would  clearly  fall  under  the  prohibition.  As  this  re- 
mark suggests  generally  the  character  of  the  gift,  whether  a  present 
or  some  title  of  honor  (although  you  do  not  suggest  this  point),  it 
must  be  observed  that  even  a  simple  remembrance  of  courtesy,  which 
from  motives  of  delicacy  recognizes  our  policy,  like  the  photographs 
in  this  case,  falls  under  the  inclusion  of  *'any  present  *  *  *  of 
any  kind  whatever."  The  act  of  1881  (supra)  which,  it  is  true,  refers 
only  to  a  foreign  government,  uses  the  words  ''any  present,  decoration, 
or  other  thing." 

But  as  the  constitutional  prohibition  expressly  and  exclusively 
relates  to  official  persons,  it  could  not  properly  be  extended,  under  the 
circumstances  at  all  events,  in  my  judgment,  to  a  department  of  the 
government  and  to  governmental  institutions. 

I  have  the  honor  to  answer  your  question  in  the  negative. 

Very  respectfully, 

HENRY  M.  HOYT, 
Acting  Attorney-General. 
The  Secretary  of  State. 


Vol.  XXIV,  p.  672  (Knox) 

CONSULS— INSPECTION  CARDS— UNOFFICIAL  SERVICES 

The  president  may  prescribe  a  fee,  as  provided  by  section  1745,  Revised 
Statutes,  for  the  services  of  a  consul  in  furnishing  inspection  cards  to  steerage 
passengers  on  vessels  destined  to  the  United  States,  as  required  by  the  Quarantine 
Regulations  of  April  1,  1903,  but  he  has  no  authority  to  declare  such  a  fee  unof- 
ficial and  to  permit  the  consul  to  retain  it  as  such. 

No  service  by  a  consul  can  be  unoflBcial  when  the  applicant  has  a  right  to 
demand  it  and  the  consul  no  right  to  refuse  it. 

647 


Vol.  XXIV,  p.  672  (KNOX) 

(673)  Department  of  Justice, 

June  11,  1903. 

Sir:  I  have  the  honor  to  acknowledge  the  receipt  of  your  com- 
mimication  of  June  5,  1903.  in  which  you  ask  for  my  opinion  as  to 
the  authority  of  the  president  to  decide  that  the  service  of  a  consul 
in  furnishing  inspection  cards  to  steerage  passengers  on  vessels  de- 
stined to  the  United  States,  as  required  by  the  quarantine  regulations 
promulgated  by  the  secretary  of  the  treasury  April  1,  1903,  is  un- 
official, and  to  establish  a  fee  for  such  services,  likewise  unofficial, 
and  which  may  be  retained  by  the  consul. 

The  act  of  congress  approved  February  15,  1893  (27  Stat.,  449), 
granting  additional  quarantine  powers  and  imposing  additional  duties 
upon  the  marine-hospital  service,  among  other  things,  provides: 

"The  secretary  of  the  treasury  shall  make  such  rules  and  regu- 
lations as  are  necessarj'-  to  be  observed  by  vessels  at  the  port  of  de- 
parture and  on  the  voyage,  where  such  vessels  sail  from  any  foreign 
port  or  place  to  any  port  or  place  in  the  United  States,  to  secure  the 
best  sanitary  condition  of  such  vessel,  her  cargo,  passengers,  and 
crew;  which  shall  be  published  and  communicated  to  and  enforced 
by  the  consular  officers  of  the  United  States,"  (Sec.  3.) 

"The  secretary  of  the  treasury  shall  from  time  to  time  issue  to 
the  consular  officers  of  the  United  States  and  to  the  medical  officers 
serving  at  any  foreign  port,  and  otherwise  make  publicly  known,  the 
rules  and  regulations  made  by  him,  to  be  used  and  complied  with  by 
vessels  in  foreign  ports,  for  securing  the  best  sanitary  condition  of 
such  vessels,  their  cargoes,  passengers,  and  crew,  before  their  de- 
parture for  any  port  in  the  United  States,  and  in  the  course  of  the 
voyage ;  and  all  such  other  rules  and  regulations  as  shall  be  observed 
in  the  inspection  of  the  same  on  the  arrival  thereof  at  any  quaran- 
tine station  at  the  port  of  destination,  and  for  the  disinfection  and 
isolation  of  the  same,  and  the  treatment  of  cargo  and  persons  on 
board,  so  as  to  prevent  the  introduction  of  cholera,  yellow  fever,  or 
other  contagious  or  infectious  diseases;  and  it  shall  not  be  lawful 
for  any  vessel  to  enter  said  port  to  discharge  its  cargo,  or  land  its 
passengers,  except  upon  a  certificate  of  the  health  (674)  officer  at 
such  quarantine  station  certifying  that  said  rules  and  regulations 
have  in  all  respects  been  observed  and  complied  with,  as  well  on  his 
part  as  on  the  part  of  the  said  vessel  and  its  master,  in  respect  to 
the  same  and  to  its  cargo,  pas.sengers,  and  crew."     (Sec.  5.) 

Proceeding  under  the  authority  of  the  above-mentioned  act,  the 
secretary  of  the  treasury',  April  1,  1903,  promulgated  the  quarantine 
laws  and  regulations  now  in  force.  These  regulations  specifically  re- 
quire that  each  steerage  passenger  shall  be  furnished  with  an  inspec- 

648 


OPINIONS  OF  ATTORNEYS  GENERAL 

tion  card  of  a  particular  kind,  which  shall  be  stamped  by  the  consul 
or  medical  officer  at  the  port  of  departure. 

The  duty  to  furnish  such  inspection  card,  properly  stamped,  has 
been  imposed  upon  consuls  by  the  congress,  and  is  therefore  official. 
The  president  may  prescribe  a  fee  for  this  official  service,  but  no  au- 
thority has  been  given  him  to  declare  such  a  fee  unofficial  and  to 
permit  the  consul  to  retain  the  same  as  such. 

Section  1745  of  the  Revised  Statutes  gives  the  president  author- 
ity to  prescribe  what  fees  may  be  charged  by  consuls  for  official  ser- 
vices, "and  to  designate  what  shall  be  regarded  as  official  services, 
besides  such  as  are  expressly  declared  by  law."  This  section  does  not, 
in  my  opinion,  authorize  the  president  to  make  unofficial  any  services, 
the  duty  to  perform  which  has  been  imposed  upon  the  consul  by  the 
congress.  When  the  congress  has  directed  a  consul  to  perform  any 
particular  service  without  fixing  a  fee  for  the  same,  the  president  may 
prescribe  a  fee  therefor.  In  such  a  case  both  the  service  and  the  fee 
would  be  official,  and  it  would  be  necessary  for  the  consul  to  account 
therefor,  as  provided  by  law. 

The  distinction  between  official  and  unofficial  fees  has  been  elab- 
orately discussed  in  United  States  v.  Badeau  (33  Fed.  Rep.,  572;  31 
Fed.  Rep.,  697)  ;  Moshij  v.  Vnited  States  (24  Ct.  Cls.  R.,  1)  ;  United 
States  V.  Mosly  (133  U.  S.,  273).  These  opinions  seem  to  make  it 
entirely  clear  that  every  service,  the  duty  to  perform  which  has  been 
imposed  on  a  consul  by  law,  is  official,  and  that  no  service  by  such 
officer  can  be  unofficial  when  the  party  desiring  the  same  has  the  right 
to  demand  it  and  the  consul  no  right  to  refuse  to  give  (675)  it.  Cer- 
tainly no  consul,  upon  proper  demand,  could  rightfully  refuse  to  issue 
to  a  steerage  passenger  the  inspection  card  provided  for  by  the  quar- 
antine regulations  when  such  passenger  had  complied  with  all  neces- 
sary conditions. 

Very  respectfully, 

P,  C,  KNOX. 
The  Secretary  of  State. 


Vol.  XXV,  p.  77  (Knox) 

DESERTEES  FROM  GERMAN  VESSELS— TREATY  OF  1871  WITH 

GERMANY 

The  question  as  to  whether  deserters  or  alleged  deserters  from  German  ships- 
of-war  or  merchant  vessels  must,  under  article  14  of  the  consular  convention  of 
1871  between  the  United  States  and  Germany  (17  Stat.,  929),  be  given  up  without 
the  examination  authorized  by  section  5280,  Revised  Statutes,  upon  the  written 
request  of  a  German  consul  and  the  filing  of  certain  papers  named  in  that  article, 
should  be  submitted  to  the  proper  court  for  a  judicial  determination. 

649 


Vol.  XXV,  p.  77  (KNOX) 

Department  of  Justice, 

November  2,  1903. 

Sir:  I  received  your  letter  of  August  18,  last,  inclosing  transla- 
tion of  a  note  from  the  German  ambassador  referring  to  a  statement 
said  to  have  been  recently  made  public  by  a  United  States  commis- 
sioner at  San  Francisco,  defining  his  future  course  with  reference  to 
the  arrest  and  detention  of  seamen  charged  with  having  deserted  from 
foreign  vessels  in  the  port  named.  The  German  ambassador  contends 
that  under  our  treaty  with  his  country,  upon  the  written  request  of 
the  German  consul,  supported  alone  by  the  documents  mentioned  in 
the  treaty,  the  persons  charged  with  desertion  shall  be  turned  over  to 
the  consuls.  The  commissioner,  with  whom  I  have  had  some  corre- 
spondence, insists  that  the  accused  should  be  allowed  to  be  heard  in 
his  o\Mi  (78)  behalf  and  that  there  should  be  an  examination  of  the 
question  whether  he  is  a  deserter.  The  ambassador  complains  to  you 
concerning  the  statement  of  the  commissioner  and  you  request  an  ex- 
presvsion  of  my  views  in  the  premises. 

Section  5280  of  the  Revised  Statutes,  upon  which  the  commis- 
sioner rests  his  contention,  reads  as  follows : 

"On  application  of  a  consul  or  vice-consul  of  any  foreign  govern- 
ment having  a  treaty  with  the  United  States,  stipulating  for  the  re- 
storation of  seamen  deserting,  made  in  writing,  stating  that  the  per- 
son therein  named  has  deserted  from  a  vessel  of  any  such  government, 
while  in  any  port  of  the  United  States,  and  on  proof  by  the  exhibition 
of  the  register  of  the  vessel,  ship 's  roll,  or  other  official  document,  that 
the  person  belonged,  at  the  time  of  desertion,  to  the  crew  of  such  ves- 
sel, it  shall  be  the  duty  of  any  court,  judge,  commissioner  of  any  cir- 
cuit court,  justice,  or  other  magistrate,  having  competent  power,  to 
issue  warrants  to  cause  such  person  to  be  arrested  for  examination. 
If,  on  examination,  the  facts  stated  are  found  to  be  true,  the  person 
arrested  not  being  a  citizen  of  the  United  States,  shall  be  delivered  up 
to  the  consul  or  vice-consul,  to  be  sent  back  to  the  dominions  of  any 
such  government,  or,  on  the  request  and  at  the  expense  of  the  consul 
or  vice-consul,  shall  be  detained  until  the  consul  or  vice-consul  finds 
an  opportunity  to  send  him  back  to  the  dominions  of  any  such  gov- 
ernment  " 

This  section  originated  in  an  act  of  March  2,  1829  (4  Stat.,  359), 
•which,  as  amended  by  an  act  of  February  24,  1855  (10  Stat.,  614), 
was,  with  a  few  immaterial  changes  in  punctuation,  incorporated  into 
the  revi.sion  of  1874  as  section  5280. 

Article  14  of  the  consular  convention  of  1871  with  Germany  is 
in  the  following  language: 

"Consuls-general,  consuls,  vice-consuls,  or  consular  agent*  may 

650 


OPINIONS  OF  ATTORNEYS  GENERAL 

arrest  the  officers,  sailors,  and  all  other  persons  making  part  of  the 
crews  of  ships-of-war  or  merchant  vessels  of  their  nation,  who  may- 
be guilty  or  be  accused  of  having  deserted  said  ships  and  vessels, 
for  the  purpose  of  sending  them  back  on  board,  or  back  to  their  coun- 
try. 

(79)  "To  that  end,  the  consuls  of  Germany  in  the  United  States 
shall  apply  to  either  the  federal,  state,  or  municipal  courts  or  au- 
thorities ;  and  the  consuls  of  the  United  States  in  Germany  shall  apply 
to  any  of  the  competent  authorities,  and  make  a  request  in  writing  for 
the  deserters,  supporting  it  by  an  official  extract  of  the  register  of  the 
vessel  and  the  list  of  the  crew,  or  by  other  official  documents,  to  show 
that  the  men  whom  they  claim  belong  to  said  crew.  Upon  such  re- 
quest alone  thus  supported,  and  without  exaction  of  any  oath  from 
the  consuls,  the  deserters  (not  being  citizens  of  the  country  where 
the  demand  is  made  either  at  the  time  of  their  shipping  or  of  their 
arrival  in  the  port),  shall  be  given  up  to  the  consuls."  (17  Stat., 
929.) 

It  will  be  observed  that  section  5280  applies  in  cases  in  which 
we  have  treaties  providing  for  the  restoration  of  deserting  seamen. 
"When  it  was  enacted  we  had  five  treaties  on  the  subject,  all  of  them 
employing  substantially  the  language  relied  upon  by  the  ambassador ; 
one  of  them  was  with  Prussia.  It  can  not,  then,  be  doubted  that  this 
statute,  which  was  for  the  very  purpose  of  carrying  out  those  treaties, 
was  regarded  as  consistent  with  their  terms.  It  was  followed  by  a 
long  series  of  similar  treaties,  repeating  substantially  the  same  lan- 
guage relied  upon  by  the  ambassador;  and  the  latest  treaties  with 
Great  Britain,  Japan,  and  other  countries,  provide  for  the  return  of 
seamen  in  the  manner  prescribed  by  law.  Thus,  for  three-quarters 
of  a  century,  this  statute,  which  provides  for  an  examination  in  addi- 
tion to  an  inquiry  into  the  question  whether  a  man  belongs  to  the 
crew  of  the  vessel,  has  stood  and  been  enforced  upon  the  theory  that 
it  was  consistent  with  our  numerous  treaties  on  the  subject  of  the 
restoration  of  seamen. 

This  would  seem  to  raise  a  presumption  in  favor  of  the  harmony 
of  the  statute  with  the  treaties,  and  of  the  acquiescence  of  numerous 
foreign  governments  in  the  construction  placed  upon  the  treaties  by 
congress. 

The  treaty  with  Germany  is  certainly  not  clearly  opposed  to  such 
a  construction.  The  first  sentence  of  article  14  provides  that  con- 
suls may  arrest  officers,  sailors,  etc.,  who  may  be  guilty,  or  be  accused 
of  having  deserted  ships,  for  the  (80)  purpose  of  sending  them  on 
board,  or  back  to  their  coimtry.  The  next  paragraph  provides  for  the 
delivery  up  to  consuls  of  ' '  the  deserters. ' ' 

651 


Vol.  XXV,  p.  77  (KNOX) 

The  treaty  thus  makes  a  distinction  between  persons  belonging  to 
the  creic  and  away  from  the  vessel  in  this  country  who  are  deserters 
and  such  persons  who  are  accused  of  desertion.  It  provides,  not  that 
those  accused,  but  that  "the  deserters"  shall  be  delivered  up.  The 
ambassador  reads  this  differently  and  says  that  the  word  "deserters," 
in  the  second  paragraph,  includes  those  accused  of  desertion.  The 
first  paragraph  provides  for  arresting,  the  other  for  delivering  up  to 
the  consuls.  Hence  there  may  well  have  been  a  difference  of  treatment 
intended,  and  only  "the  deserters"  may  have  been  intended  to  be  de- 
livered up.  I*  "0,  an  inquiry  to  distinguish  the  deserters  from  mem- 
bers of  the  c  '-  way  from  the  ship  and  accused  of  desertion  would  be 
necessary,  luis  inquiry  is  provided  for  by  the  law  which  has  stood 
so  long  upon  our  statute  books. 

But  this  statute  and  treaty  provide  a  method  whereby  the  judi- 
cial authorities  may  determine  this  question.  According  to  either 
the  consul  may  apply  to  the  proper  court.  If  it  should  be  held  by 
the  court  that  the  statute  is  obligatory,  notwithstanding  differences 
which  may  be  held  to  exist  between  it  and  the  treaty,  which  the  am- 
bassador regards,  and  is  probably  right  in  regarding,  as  of  later  date 
than  the  statute,  then  it  will  be  necessary  to  modify  the  statute. 

If  the  ambassador's  contention  is  correct,  I  have  no  doubt  that 
the  court  will  so  decide. 

I  would  suggest,  therefore,  that  an  application  be  made  to  the 
proper  court  and  the  question  fully  presented  by  the  German  consul- 
general. 

Respectfully, 

P.  C.  KNOX. 
The  Secretary  of  State. 


G52 


ANALYSIS  OF  TREATIES  OF  THE  UNITED  STATES  RELATING 

TO  CONSULS' 


GENERAL  ACT  FOR  THE  REPRESSION  OF  AFRK    vN  SLAVE 

TRADE 

Signed  July  2,  1890. 
Art. 
LXXI.  AesiBtance  of  diplomatic  and  consular  officers  to  local  authorities  and 
presence  at  trials. 


ARGENTINE  REPUBLIC 


Treaty  concluded  July  27,  1853.     (Friendship,  commerce,  and  navi- 
gation.) 
Art. 

IX.  Custody  of  estates  of  deceased  citizens  by  consuls.     Delivery  of  prop- 
erty of  deceased  citizens  to  legal  heirs. 
X.  Establishment   of    cqnsuls.      Inviolability   of    consulates    and    archives. 
Most  favored  nation  treatment. 


AUSTRIA— HUNGARY 


Consular  convention  concluded  July  11,  1870.    (Rights,  privileges,  and 

immunities  of  consuls. ) 
Art. 

I.  Establishment  of  consuls.     Exequatur.     Privileges. 
II.  Exemption  of  consuls  from  military  billetings,  service,  taxation,  etc. 

III.  Exemption  of  consuls  from  appearing  as  witnesses  in  courts  of  justice. 

IV.  National  coat  of  arms  and  flags. 

v.  Inviolability  of  consulate  and  archives. 
VI.  Temporary  transaction  of  business  in  case  of  absence,  death,  etc.,  of 
consuls. 
VII.  Appointment  of  vice-consuls   and  consular  agents  by  consuls.     Privi- 
leges. 
VIII.  Form  of  communication  of  consuls  with  the  local  authorities. 

IX.  Consul's  right  to  receive  depositions  of  passengers  and  crew.     He  may 
deliver  certificates. 

*  This  analysis,  made  by  Mr.  Woislav  Petrovitch,  formerly  American  Vice- 
Consul  at  Belgrade,  Servia,  includes  the  treaties  of  the  United  States  contained 
in  the  Consular  Regulations  (1896)  and  those  proclaimed  since.  No  treaties  witk 
countries  where  exterritorial  jurisdiction  is  exercised  have  been  retained. 

653 


ANALYSIS  OF  TREATIES 

X.  Consular  jurisdiction  over  vessels  and  crew.     Presence  of  consuls  at 

judicial  proceedings  and  search  of  vessels. 
XI.  Jurisdiction  over  seamen. 
XII.  Arrest  of  deserters. 

XIII.  Settlement  of  damages  at  sea. 

XIV.  Wrecks. 

XV.  Privileges  of  consuls.    Most  favored  nation  treatment. 
XVT.  Custody    of    property    of    deceased    citizens    by    consular    officers    and 
search  for  legal  heirs. 


BELGIUM 


Treaty  concluded  March  9,  1880.     (Rights,  privileges,  and  immunities 

of  consuls.) 
Art. 

I.  Establishment  of  consuls.     Most  favored  nation  treatment. 
II.  Privileges  and  immunities  of  consuls.     Commission.     Exequatur. 
III.  Exemption  of  consuls  from  military  service  and  taxation,  except  when 

traders  and  landed  proprietors. 
IV.  Exemption  of  consuls  from  appearing  as  witnesses  in  courts  except  In 
criminal  cases. 
V.  National  coat  of  arms  and  flag. 
VI.  Inviolability  of   consuls,  consulates,   and   archives.     Consulates  not  to 
serve   as   asylum. 
VII.  Temporary  transaction   of  business  in  case  of  absence,   death,  etc.  of 
consuls.    Privileges  of  officers  in  charge. 
"^TIII.  Appointment   of   vice-consuls   and   consular   agents   by   consuls.     Priv- 
ileges. 
IX.  Communication  of  consuls  with  local  authorities  in  case  of  infraction  of 
treaties  and  protection  of  their  countrymen. 
X.  Consuls'  right  to  receive  depositions  of  passengers  and  crew.     They 
may  deliver  certificates. 
XI.  Consular  jurisdiction  over  vessels  and  crew. 
XII.  Consular  jurisdiction  over  crew.     Arrest  of  deserters. 
XIII.  Damages  at  sea. 

XIV.  Wrecks  at  sea.     Protection  of  persons  and  goods  saved  from  wreck. 
Intervention  of  local  authorities  prohibited. 
XV.  Custody  of  property  of  deceased  citizens  and  forwarding  of  same  to 
parties  interested. 


BOLIVIA 


Treaty  concluded  May  13,  1858.     (Peace,  friendship,  commerce,  and 

navigation.) 
Art. 

XXXI.  Establishment  of  consuls.     Most  favored  nation  treatment. 
XXXII.  Rights,  privileges  and  immunities  of  consuls.     Commission.     Exequatur. 

654 


ANALYSIS  OF  TREATIES 

XXXIII.  Exemption  of  consular  officers  from  imposti  and  taxes,  except  when 

traders  or  landed  proprietors.    Inviolability  of  archives. 

XXXIV.  Communications  with  local  authorities  in  regard  to  arrest  of  seamen 

deserters.     Consular  jurisdiction  over  vessels  and  crew. 


COLOMBIA 


Treaty  concluded  May  4,  1850,  with  New  Granada.     (Consular  privi- 
leges.) 


Art. 


I.  Freedom  of  commerce.     Establishment  of  consuls. 
II.  Commission.     Exequatur. 
III.  Consular  functions  and  authority. 

IV.  Consuls  of  each  republic  may  employ  their  good  offices  in  favor  of  In- 
dividuals of  the  other  having  no  consul  in  another  country. 
V.  Consuls  have  no  diplomatic  character.     Prerogatives. 
VI.  Consuls  subject  to  local  jurisdiction,  excepting  in  the  cases  in  which 
they  receive  exemption.     National  treatment. 
VII.  Consuls  not  authorized  to  issue  passports.     Consular  jurisdiction  over 
vessels  and  crew. 


COSTA  RICA 


Treaty  concluded  July  10,  1851.     (Friendship,  commerce,  and  naviga- 
tion.) 
Art. 

VIII.  Custody  of  property  of  deceased  citizens.     Search  for  legal  heirs. 
IX.  Citizens  exempt  from  military  service.     National  treatment. 
X.  Establishment   of    consuls   and   diplomatic   representatives.     Privilegefl 
and  immunities. 


DENMARK 


Treaty  concluded  April  26,  1826.     (Friendship,  commerce,  and  navi- 
gation.) 
Art. 

VIII.  Freedom  of  commerce  and  navigation.  Establishment  of  consuls.  Most 
favored  nation  treatment. 
IX.  Consular  commission   and   exequatur. 
X.  Consuls  and  consular  officers  exempt  from  public  and  military  services. 
Exemption  from  taxation  if  not  traders  or  landed  proprietors. 

Additional  articles,  concluded  July  11,  1861. 


Art. 


I.  Consular  jurisdiction  over  vessels  and  crew. 
II.  Arrest  of  deserters. 

655 


ANALYSIS  OF  TREATIES 
DOMINICAN  REPUBLIC 


Treaty  concluded  February  8,  1867,     (Amity,  commerce,  navigation, 

and  extradition.) 
Art. 

XXVI.  Establishment  of  consuls.     Privileges.     Most  favored  nation  treatment 
for   non-trading   consular   officers.     Inviolability   of   archives.     Con- 
sular jurisdiction  over  vessels  and  crew.     Arrest  of  deserters. 
XXVII.  Extradition  of  criminals. 


ECUADOB 


Treaty  concluded  June  13,  1839.     (Peace,  friendship,  navigation  and 

commerce. ) 
Art. 

XXIX.  Freedom  of  commerce  and  navigation.  Establishment  of  consuls.  Most 
favored  nation  treatment. 
XXX.  Consular  commission  and  exequatur. 
XXXI.  Privileges    of    consular    officers.     Exemption    of    non-trading    consular 
officers  from  taxation.     Inviolability  of  archives. 
XXXII.  Arrest  of  deserters. 
XXXIII.  Powers  and  immunities  of  consuls. 
XXXIV.  Most  favored  nation  treatment. 


FRANCE 

Convention  concluded  February  23,  1853.     (Consular  privileges.) 
Art. 

I.  Establishment  of  consuls.  Commission.  Exequatur. 
II.  Privileges.  Exemption  of  non-trading  consuls  from  taxation.  Arms 
and  flags.  Consuls  not  obliged  to  appear  as  witnesses  in  courts. 
Consular  pupils  and  their  privileges.  Temporary  transaction  of 
business  in  case  absence,  death,  etc.  of  consuls.  Prerogatives  of 
acting  consuls. 
III.  Inviolability  of   consulates  and  archives.     Consulates  not  to  serve  as 

asylum. 
IV.  Consular  rights  regarding  the  protection  of  their  countrymen, 
V.  Appointment  of  vioe-consuls  and  consular  agents  by  consuls.     Approval 
of  local  authorities  necessary. 
VI.  Consuls'  right  to  deliver  certificates. 
VII.  National  treatment  of  citizens. 
VIII.  Consular  jurisdiction  over  vessels. 

IX.  Arrest   of   deserters.     Form    of   communication    of   consuls    with   local 
authorities. 

656 


ANALYSIS  OF  TREATIES 

X.  Receiving   declarations,   etc.   of   vesiela   by   consuls.       Examination   of 
stowage  by  consuls. 
XI.  Wrecks.     Measures  to  be  taken  for  protection.     Ee-exported  goods  from 
wrecks  not  liable  to  any  duty. 
XII.  Privileges  and  immunities  of  consular  officers.     Most  favored  nation 
treatment. 


GERMAN  EMPIKE 


Consular  convention  concluded  Dec.  11,  1871.     (Consuls  and  trade- 
marks.) 

Art. 

I.  Establishment  of  consuls. 
II.  Commission.     Exequatur. 
III.  Privileges  and  immunities  of  consular  officers.     Exemption  from  taxes 
if  not  landed  proprietors   or   traders.     Most   favored   nation   treat- 
ment. 
IV.  National  coat  of  arms  and  flags. 
V.  Inviolability   of   consuls,   consulates   and   archives.     Consulates   not   to 
serve  as  asylum. 
"VT.  Temporary  transaction  of  business  in  case  of  absence,  etc.  of  consuls. 
VII.  Appointment  of  vice-consuls  and  consular  agents  by  consuls. 
VIII.  Consular  communications  with  local  authorities  in  regard  to  protection 
of  their  countrymen. 
IX.  Consular  jurisdiction  over  vessels. 
X.  Custody  of  property  of  deceased  citizens  by  consuls.     Search  for  legal 
heirs. 
XI.  Inventorying  and  safe-keeping  of  goods  and  effects  left  by  citizens  on 
ships. 
XII.  Consuls'  rights  on  board  of  ships. 

XIII.  Consular  jurisdiction  over  vessels. 

XIV.  Arrest  of  deserters.     Communication  vdth  local  authorities. 
XV.  Damages  at  sea. 

XVI.  Wrecks. 
XVII.  Patents,  trade-marks.     National  treatment. 


GEEAT  SEXTAIN 


Concluded  July  3,  1815.     (Commerce.) 
Art. 

IV.  Establishment  and  treatment  of  consuls. 


Treaty  concluded  June  2,  1892.     (Reclamation  of  deserting  seamen.) 
Art. 

I.  Arrest  of  deserters. 

657 


ANALYSIS  OF  TREATIES 
GREECE 


Treaty  concluded  Dec.  10-22,  1837.     (Amity  and  commerce.) 
Art. 

XII.  Establishment  of  consuls.     Privileges.     Consular  jurisdiction  over  ves- 
sels. 
XIII.  Arrest  of  deserters. 


Consular  convention  concluded  November  19,  1902.     (Dec.  2,  1902.) 

Art. 

I.  Appointment  of  consular  officers. 
II.  Consular  privileges.     Most  favored  nation  treatment. 

III.  Exemptions. 

IV.  Testimony  by  consuls. 
V.  Arms  and  flags. 

VI.  Immunities  of  offices  and  archives. 
VII.  Privileges  of  acting  officers. 
VIII.  Vice-consuls  and  agents  appointed  by  consuls. 
IX.  Communication  of  consuls  w-ith  local  authorities. 

X.  Notarial  powers. 
XI.  Estates  of  deceased  citizens. 
XII.  Shipping  disputes. 

XIII.  Deserters  from  ships. 

XIV.  Damages  to  vessels  at  sea. 
XV.  Shipwrecks  and  salvage. 

XVI.  Examination  of  vessels. 


GUATEMALA 


Treaty  concluded  Aug.  27,  1901.     (Convention  relative  to  tenure  and 

disposition  of  real  and  personal  property.) 
Art 

I.  Disposition  of  real  property. 
IL  Disposition  of  personal  property. 
ni.  Notice  of  decease  of  citizens. 


HANSEATIC  REPUBLICS 


Additional  article  to  the  convention  of  friendship,  commerce,  and  nav- 
igation of  the  Dec.  20th,  1827,  between  the  United  States  of 
America  and  the  Hanseatic  Republics  of  Lubeck,  Bremen,  and 
Hamburg,  concluded  June  4,  1828. 

658 


ANALYSIS  OF  TREATIES 

Art. 

Congular  jurisdiction  over  vessels.     Arrest  of  deserters.     Consular  com- 
munications with  the  local  authorities. 
Convention  for  the  mutual  extension  of  the  jurisdiction  of  consuls 
between  the  United  States  of  America  and  the  Free  and  Han- 
seatic  Republics  of  Hamburg,  Bremen,  and  Lubeck,  concluded  at 
Washington,  April  30,  1852. 


Art. 


I.  Consular  jurisdiction  over  vessels  and  crew.     Assistance  by  local  au- 
thorities. 


Art. 


HAITI 


Mutual  extradition  of  criminals.     Signed  Aug.  9,  1904. 

IX.  Consuls  procedure  in  making  complaint. 
X.  Consuls  to  act  in  absence  of  diplomatic  representatives. 
XIV.  Consuls    may    make    demand    in    consular    possessions    of    the    United 
States. 


Treaty  concluded  Nov.  3,  1864.     (Amity,  commerce,  navigation,  and 

extradition.) 
Art. 

XXXIII.  Establishment  of  consuls.     Privileges. 
XXXIV.  Commission.     Exequatur. 

XXXV.  Exemption  of  non-trading  consular  officers. 
XXXVI.  Arrest  of  deserting  seamen.     Communications  of  consul  with  local  au- 
thorities. 
XXXVII.  Extension  of   freedom   of   commerce   and  navigation   granted   by   the 
present  convention. 


HOin)URAS 


Treaty  concluded  July  4,  1864.     (Friendship,  commerce  and  naviga- 
tion.) 
Art. 

VIII.  Privileges   of   citiaens.     National   treatment.     Custody   of   property  of 
deceased  citizens  by  consuls.     Search  for  lawful  heirs. 
X.  Establishment  of  consuls.  Privileges,  exemptions  and  immunities.  Most 
favored  nation  treatment. 

659 


ANALYSIS  OF  TREATIES 
ITALY 


Treaty  concluded  May  8,  1878.     (Rights,  privileges,  and  immunities 

of  consular  officers.) 


Art 


I.  Eatablishment  of  consula. 
II.  Commisiion.     Exequatur.     Privileges. 

III.  Exemption  of  #on8ul8  from  arrest,  military  billetiags,  military  service, 

and  taxation.     Exemption  from  taxation  does  not  apply  to  trading 
consuls  and  those  possessing  real  estate. 

IV,  Exemption  of  non-trading  consuls  from  appearing  as  witnesses  in  courtb 

of  law. 
V.  National  coat  of  arms  and  flags. 
VI.  Inviolability  of  consular  offices  and  archives. 
VII.  Acting  consuls  in  absence  etc.  of  consuls.     Rights,  privileges  and  im- 
munities. 
VIII.  Appointment  of  vice-consuls  and  consular  agents  by  respective  govern- 
ments or  consuls.     Privileges. 
IX.  Communications  with  local  authorities  relative  to  violation  of  treaties 
and  protection  of  subjects. 
X.  Depositions  by  captains  and  crew,  etc.  before  consul.     Power  of  con- 
suls to  receive  contracts  relating  to  property  etc.     Consular  legaliza- 
tions. 
XI.  Internal  order  of  ^'easels.     Consular  jurisdiction. 
XII.  Disputes  between  officers  and  passengers  to  be  decided  in  circuit  or 
district  courts  of  the  United  States. 

XIII.  Deserters  from  ships  of  war  and  merchant  vessels.     Consular  jurisdic- 

tion. 

XIV.  Damages  at  sea. 
XV.  Wrecks,  etc. 

XVI.  Custody  of  property  of  deceased  subjects.     Search  for  legal  heirs. 
XVII.  Privileges,   rights  and  immunities  of  consular  officers.     Most  favored 
nation  treatment. 


JAPAN 

Treaty  concluded  November  22,  1894.     (To  go  into  effect  July  6, 

1899.) 

Art. 

XI.  Wrecks. 

XIII.  Consular  communications  with  local  authorities. 

XIV.  Privileges.     Most  favored  nation  treatment. 

XV.  Establishment   of  consuls,  etc.     Privilegei   and  immunities.     Most  fa- 
vored nation  treatment. 
XVIII.  Validity  and  duration  of  the  present  treaty. 


Treaty  of  commerce  and  navigation.    Concluded  Nov.  22,  1894.    Pro- 
claimed March  21,  1895. 
Art. 

XI.  Vessels  in  distress,  shipwrecks.     Consular  jarisdiction  over  vessels. 

660 


ANALYSIS  OF  TREATIES 

XIII.  Deserters  from  Bhips. 

XIV.  Favored  nation  treatment. 

XV.  Establishment  of  consuls.     Privileges.     Immunities,  etc. 


KONGO  FREE  STATE 


Treaty  of  amity,  commerce,  and  navigation,  concluded  at  Brusselj, 

January  24,  1891. 


Art. 


Establishment  of  consuls.  Privileges.  Immunities.  Most  favored  nation 
treatment.  Exemption  of  citizens  from  military  service,  from  arrest 
except  for  crimes  and  from  taxation  if  not  traders.  National  flag. 
Inviolability  of  consuls,  consulates  and  archives.  Consulates  not  to 
serve  as  asylum.  Functions  of  consuls.  Communications  with  local 
authorities.     Arrest  of  deserters. 


LIBEBIA 


Treaty  concluded  Oct.  21,  1862.     (Commerce  and  navigation.) 
Art. 

VII.  Establishment  of  consuls. 


MEXICO 

Treaty  concluded  April  5,  1831.     (Amity,  commerce  and  navigation.) 
Art. 

XXVIII.  Establishment    of    consuls.      Commissions    and    exequaturs.      Privileges 
and  immunities. 
XXIX.  Exemption  of  consular  officers  from  public  service  and  taxation.     In- 
violability of  consulates  and  archives. 
XXX.  Consular   communications  with  the  local   authorities.     Consular  juris- 
diction over  vessels. 
XXXI.  Powers  and  immunities  of  consuls. 


NETHEELAlfDS 


Treaty  concluded  January   22,   1855.      (Consular  privileges  in  col- 
onies.) 
Art. 

I.  Admission  of  consuls  to  Netherlands  transmarine  possessions. 
II.  Immunities  of  consuls. 

661 


ANALYSIS  OF  TREATIES 

III.  Commission  and  exequatur. 

IV.  National  coat  of  arms.     Consulates  not  to  serve  as  asylum. 
V.  Inviolability  of  archives. 
VI.  Consuls  without  diplomatic  character. 
VII.  Appointment  of  vice-consuls  by  consuls. 
VIII.  Passport  delivered  by  consuls  insufficient  to  permit  bearer  to  establish 
himself  in  the  colonies. 
IX.  "Wrecks  at  sea. 
X.  Consular   communications   with   the  local   authorities.     Consular  juris- 
diction. 
XI.  Custody  of  property  of  deceased  persons.    Search  for  interested  parties. 
XII.  Consular  jurisdiction  over  vessels. 
XIII.  Privileges  of  consuls.     Exemption  of  consuls  from  military  service  and 

taxation  if  not  engaged  in  trade. 
XTV.  Privileges,  exemption.    Immunities.    Most  favored  nation  treatment. 


Treaty  concluded  May  23,  1878.     (Rights,  privileges,  and  immunities 
of  consular  officers — not  applicable  to  colonies.) 

Art 

I.  Establishment  of  consuls. 
II.  Commission.     Exequatur. 

III.  Privileges.     Immunities.     Exemptions. 

IV.  Consuls  exempted  from  appearing  as  witnesses  in  courts  of  justice. 
V.  National  coat  of  arms  and  flag. 

VI.  Inviolability   of   consulate    and   archives.     Consulates   not   to   serve   as 
asylum. 
VII.  Transaction  of  business  in  case  of  absence,  death,  etc.  of  consuls. 
VIII.  Vice  consuls  etc.  appointed  by  consuls.     Privileges. 
IX.  Consular  communications  with  the  local  authorities. 

X.  Consular  rights,  privileges  and  functions. 
XI.  Consul  to  be  informed  in  case  of  death  of  citizens. 
XII.  Consular  jurisdiction  over  vessels. 

XIII.  Damages  at  sea. 

XIV.  Wrecks  at  sea. 

XV.  Custody  of  property  of  deceased  citizens.    Search  for  lawful  heirs. 


NICAEAGTIA 


Treaty  concluded  June  21,  1867.    (Friendship,  commerce,  and  naviga- 
tion.) 

Art. 

Vm.  Custody  of  property  of  deceased  citizens  by  consuls.    Search  for  legal 
heirs. 
X.  Establishment  of  consuls. 

662 


ANALYSIS  OP  TREATIES 
ORANGE  FREE  STATE 


Convention  concluded  Dec.  22,  1871.     (Friendship,  commerce,  and 

extradition.) 
Art. 

V.  Establishment  of  consuls.     Trading  consuls  treated  as  nationals.     In- 
violability of  consulates  and  archives. 
VI.  Duties  on  imports  and  most  favored  nation  treatment. 
VII.  Most  favored  nation  treatment. 
VIII.  Consular  jurisdiction. 
IX.  Criminal  cases. 
X,  The  surrender  to  be  made  by  executive  of  the  contracting  parties,  re- 
spectively. 
XI.  The  expenses  of  detention,  etc.  at  the  cost  of  party  making  demand. 
XII.  Fugitive  criminals. 


PANAMA 


Mutual  extradition  of  criminals.    Signed,  May  25,  1904. 
Art. 

III.  Consuls'  action  in  securing  extradition. 


PARAGUAY 


Treaty  concluded  Feb.  4,  1859.     (Friendship,  commerce,  and  naviga- 
tion.) 
Art. 

X.  Custody  of  property  of  deceased  citizens  by  consuls.     Search  for  legal 
heirs. 
XII.  Establishment  of  consuls.     Privileges,  immunities. 
XIV.  Privileges  of  citizens.    National  treatment. 


PERU 

Treaty  of  friendship,  commerce,  and  navigation,  concluded  at  Lima 

August  31,  1887. 

Art. 

XXX.  Establishment  of  consuls.    Rights,  privileges,  immunities. 
XXXI.  Exemption  of  consuls  from  military  service  and  taxation,  except  when 
traders    and    landed    proprietors.     Inviolability    of    consulates    and 
archives. 
XXXII.  Consular  communications  with  local  authorities.     Arrest  of  deserters. 
XXXIII.  Custody  of  property  of  deceased  citizens  by  consuls.     Search  for  legal 
heirs. 

663 


ANALYSIS  OF  TREATIES 
ROUMANIA 


Consular  convention  concluded  June  5,  1881. 

Art. 

I.  Eitablishment  of  consuls. 
II.  Privileges  and  immunities. 
Ill,  Exemption  of  consuls  from  arrest  except  in  criminal  cases.     Exemption 
of  consuls  from  taxation  except  when  traders  and  proprietors  of  real 
estate. 
rV.  Exemption  of  consuls  from  appearing  as  witnesses  in  courts  of  justice. 

V.  National  coat  of  arms  and  flags. 
VI.  Inviolability  of  consulates  and  archives. 
VII.  Temporary  transaction  of  business  in  case  of  death,  absence,  etc.  of 
consuL 
VIII.  Appointment  of  vice-consuls,  etc.  by  consul.     Privileges. 
IX.  Communications  with  local  authorities. 
X.  Consuls  may  receive  depositions  of  passengers  and  crew. 
XI.  Consular  jurisdiction  over  vessels. 
XII.  Arrest  of  deserters. 
XIII.  Damages  at  sea. 
XIV.  Wrecks  at  sea. 
XV.  Custody  of  property  of  deceased  citizens  by  consuls.     Search  for  legal 
heirs. 


RUSSIA 
Treaty  concluded  Dec.  6-18,  1832.     (Navigation  and  commerce.) 

Art. 

Vni.  Establishment  of  consuls.     Privileges  of  non-trading  consuls.     Consular 
jurisdiction  over  vessels. 
IX.  Form  of  communication  with  local  authorities.    Arrest  of  deserters. 


SERVIA 

Consular  convention,  concluded  Oct.  2-14,  1881. 
[Text  of  this  convention  same  as  that  concluded  June  5,   1881,  vrith 
Roumania,  ante.] 


SPAIN 

Treaty  of  friendship  and  general  relations.    Concluded  July  3,  1902. 

Art. 

XIII.  Establishment  of  consular  officers. 
XIV.  Consular  privileges. 

664 


ANALYSIS  OF  TREATIES 

XV.  Consular  exemptione. 
XVI.  Testimony  by  consuls. 
XVII.  National  coat  of  arms  and  flags. 
XVIII.  Consular  offices  and  archives  are  inviolable. 
XIX.  Privileges  of  acting  consular  officers. 

XX.  Vice  consuls  and  agents  appointed  by  consuls. 
XXI.  Communications  with  authorities. 
XXII.  Notarial  powers  of  consuls. 
XXIII.  Shipping  disputes. 
XXIV.  Deserters  from  ships. 
XXV.  Damages  to  vessels  at  sea  to  be  settled  by  consuls. 
XXVI,  Notice  of  decease  of  citizens. 
XXVII.  Care  of  minor  heirs. 
XXVIII.  Favored  nation  treatment. 


Treaty  concluded  Oct.  27,  1795.    (Friendship,  limits,  and  navigation.) 

Art. 

XIX.  Establishment  of  consuls.     Privileges.     Most  favored  nation  treatment. 


SWEDEN  AND  NORWAY 


Treaty  concluded  July  4,  1827.     (Commerce  and  navigation.) 
Art. 

XIII.  Establishment    of    consuls.      Protection.     Privileges.      Inviolability    of 

consulates  and  archives.     Consular  jurisdiction  over  vessels. 
XIV.  Communications  of  consuls  with  local  authorities.     Deserters. 


SWISS  CONFEDERATION 


Concluded  Nov.  25,  1850.    (Friendship,  commerce,  and  for  the  surren- 
der of  fugitive  criminals.) 
Art. 

VII.  Establishment  of  consuls.  Privileges.  Most  favored  nation  treatment. 
In  their  private  transactions  consuls  treated  as  natives.  Commis- 
sion.    Exequatur.     Inviolability  of  consulates  and  archives. 


665 


INDEX  ANALYSIS  OF  THE  FEDERAL  STATUTES  RELATING  TO 

CONSULS^ 


COMMERCIAL  AGENCIES 

See  also  Consular  Agencies 

See  also  Consulates 

Fees  for  official  services  prescribed  by  President    . .  R.  s.  1745 

President  may  define  extent  of  territory  embraced  .  R.  s.  1695 

President  to  provide  for  stationery,  books,  etc.,  of  . .  R.  s.  1748 

Principal  officers  entitled  to  certain  fees  collected 

by   subordinates     E.  s.  1703 

COMMERCIAL  AGENTS 

See  also  Consular  Service. 

ABOLISHMENT  OF  OFFICE    34 :  100  Apr.  5, 1906 

ABSENCE  FROM  POST 

Limit  of  ten  days  without  permission    R.  s.  1741 

18:77  June  17, 1874 

APPOINTMENT  IN  PLACE  OF  CONSULS    R.  s.  1690 

BONDS. 

Conditions;    amount     R.  s.  1697 ;  1699,  1700 

30:770Dec.  21, 1898 

Deposited  with  secretary  of  the  treasury    R.  s.  1697 

30:770Dec.  21, 1898 
Suits   on;    procedure,    service   of    process,    ap- 
pearance     30 :770,  771,  Dec.  21, 1898 

Suits  on  for  transacting  business    R.  s.  1701 

DEFINITION     R.  s.  1674 

FEES 

Accounting,  manner  of     R.  s.  1729 ;    1747 

Invoices,  verification  of    R.  s.  2851 

Omitting  to  collect;  penalty    R.  s.  1724 

Returns  when  part  of  compensation ;  form    .  . . .  R.  s.  1725 

128:206  July  31, 1894 
Bohedules  B  and  C,  agents  in ;  accounting  for    R.  S.  1747 
Schedules  B  and  C,  agents  not  in;  accounting 

for    R.  s.  1729 


^This  is  an  authorized  extract  from  the  admirable  INDEX  ANALYSIS  OF 
THE  FEDERAL  STATUTES  by  Scott  and  Beaman.  The  references  preceded  by 
R.  S.  are  to  sections  of  the  Revised  Statutes  (1873).  The  other  references  are  to 
the  volumes  and  page  of  the  Statutes  at  Large  and  to  the  date  of  the  enactment  of 
the  statute. 

666 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 
COMMERCIAL  AGENTS — Continued 

FEES — Continued 

Schedules  B  and  C,  agents  not  in ;  excess  of    . .  B.  8. 1732 
Schedules  B  and  C,  agents  not  in;   salary  to 

consist   of     E.  8. 1730 

JUDICIAL  AUTHOKITY.     See  Consulab  Skeviob 

— Judicial  Authority 
OFFENCES 

False  certification ;  penalty    e.  s.  5442 

False    certification    of    property,    penalty    for 

making     B.  s.  1737 

Fees,  omitting  to  collect;  penalty   B.  s.  1724 

Neglect  of  duty  to  seamen ;  penalty B.  s.  1736 

Transacting  business ;   penalty    B.  s.  1701 

OFFICE  KENT    B.  s.  1706 

POWEES  AND  DUTIES 

Invoices,  duties  with  respect  to  quadruplicates 

of    21 :  173  June  10,  1880 

Invoices,  duties  with  respect  to  triplicates  of .  . .  R.  s.  2855;  2857 
Invoices,  indorsement  in  adjacent  countries.  .  .  .B.  s.  2856 

Invoices  produced  to  commercial  agents   b.  s.  2843 

26:131  June  10,1890 
Naval  supplies  purchased  by  paymasters,  certi- 
ficates as  to  ruling  market  prices B.  s.  3723 

Oaths  to  patent  or  copyright  applicants,   ad- 
ministration of    E.  s.  4892 

32:1226Mar.  3,  1903 

Seamen,  provisions  for  return  of B.  s.  4577,  4578 

23:55  June  26,  1884 
Ship's  papers,  delivery  of  to  master;  conditions  R.  s.  4309 
Suits  to  recover  penalty  for  failure  to  deposit 

papers    B.  s.  4310 

Trademarks,  verifications  of  applications 33:725  Feb.  20, 1905 

Transacting  business;  prohibition;  penalty. ..  .B.  s.  1699-1701 
Vessels,  appointment  of  inspectors  to  determine 

seaworthiness    B.  s.  4559 

30:757Dec.  21, 1898 

Vessels,  determination  of  seaworthiness   B.  s.  4560 

EECORDS   AS  EVIDENCE    B.  s.  896 

EEPORTS  AND  EETUENS 

of  Agricultural  statistics  monthly 25 :  186  June  18,  1888 

Commercial  reports  to  be  made  when  required. . .  B.  s.  1712 

25:186  June  18,1888 

of  Fees,  when  part  of  compensation;  form B.  s.  1725 

28:206  July  31,  1894 
Eevenue,  reports  of  fraudulent  practices  on  . . . .  B.  s.  2863 

of  Wages  to  be  made  annually 20 :  274  Jan.  27, 1879 

SALAEIES 

under  Schedules  B  and  C B.  s.  1690 

Schedules  B  and  C,  if  not  in E.  s.  1730 

Term  during  which  payable;  allowances B.  s.  1740 

667 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 

COMMEKCIAI  AGENTS — Continued 
VICE-COMMEHCIAL  AGENTS 

Appointment  regulated  by  President    B.  s.  1695 

Bonds  may  be  required  by  President K.  8.  1700 

Definition    B.  s.  1674 

False  certification ;  penalty   B.  s.  5442 

False    certification    of    property,    penalty    for 

making    B.  s.  1737 

Fees,  accounting  for R.  s.  1747 

Fees,  omitting  to  collect ;  penalty B.  s.  1724 

Fees ;  returns  when  part  of  compensation,  form  K.  s.  1725 

28:206  July  31, 1894 
Salary,  allowance  during  instructions  prohibit- 
ed    B.  s.  1740 

Salary  prescribed  by  President B.  s.  1703 

Salary,  from  what  paid B.  8. 1695 

Seamen,  provisions  to  be  made  for  return  of  .  . .  R.  s.  4577 ;  4578 

23:55  June  26,1884 
Ship 's  papers,  delivery  to  master ;  conditions .  . .  B.  s.  4309 
Suits  to  recover  penalty  for  failure  to  deposit 

papers B.  s.  4310 

Transacting  business,  when  President  may  for- 
bid    R.  8. 1700 

CONSTJLAIl  AGENCIES 

See  also  Commercial  Agencies 
See  also  Consulates 

Erpense  allowance  limited  to  stationery  and  post- 
age     R.  8  1696 

Fees  received  at ;  excess  above  $1,000  R.  8. 1733 

CONSULAR  AGENTS 

See  also  Consular  Service 
ABSENCE  FROM  POST 

Limit  of  ten  days  without  permission   B.  s.  1741 

18:77  June  17, 1874 
APPOINTMENT 

Manner  to  remain  unchanged   34 :  100  Apr.  5, 1906 

President   to   regulate    B.  8.  1695 

BONDS 

Condition  against  engaging  in  business,  etc. ..  .34  :  101  Apr.  5, 1906 

President  may  require   R.  S.  1700 

COOLIES,  IMMIGRATION  OF    B.  8.  2162 

DEFINITION   R.  8.  1674 

DISABILITIES 

Transacting  business,  legal  practice,  etc.,  when 

forbidden    34:101  Apr.  5, 1906 

Transacting  business,  when  President  may  for- 
bid     B.  8. 1700 

34:101  Apr.  5, 1906 
FEES 

Balance   after  deduction  for  salary  paid  into 

Treasury    34:101  Apr.  5, 1906 

668 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 
CONSULAR  AG-EIHTS— Continued 

FEES— Continued 

Canadian  ports,  vessels  touching  at;  when  ex- 
empt from K.  S.  4222 

Foreign  moneys  to  be  received  for,  in  Canada,  .b.  s.  1722 
Returns  when  part  of  compensation;  form  .  . .  .B.  s.1725 

28:206  July  31,  1894 

Salaries  to  be  paid  by  one-half  of;  limit 34:101  Apr.  5, 1906 

Salaries  paid  from,  as  President  directs k.  8.  1703 

NAVAL  SUPPLIES 

Certificates  that   paymasters'  purchases  made 

at  ruling  market  prices  B.  s.  3723 

SALARIES 

Aliens  not  entitled  to  compensation  for  service 

in  office  mentioned  in  R.  S.  1675 B.  s.  1744 

Allowance  during  instructions  prohibited   e.  s.  1740 

Fees,  payment  from,  as  President  directs B.  s.  1703 

Fees,  payment  by  one-half  of;  limit   34:101  Apr.  5, 1906 

CONSULAR  COURTS 

ACCOUNTS    E.  s.  4120 

AID  OF  LOCAL  AUTHORITIES    B.  s.  4100 

APPEALS 

to  Circuit  Court  for  California B.  s.  4093-4096 

to  Ministers 

Powers  of  ministers  prescribed E.  s.  4091 

in    China    and    Japan;    amount    between 

$500  and  $2,500   E.  s.  4092 

from  Consul 's  decisions    E.  s.  4089 ;  4105 ;  4109 

on  Difference  of  opinion  in  consular  court.  E.  s.  4106;  4107 
ASSOCIATES  IN  TRIAL 

Civil  cases ;  number,  selection,  duties B.  s.  4107 

Criminal  cases;  concurrence  with  consul  makes 

decision  final;   exceptions   E.  s.  4106 

Criminal  cases;  concurrence  with  consul,  when 

necessary  to  conviction   E.  s.  4102 

Criminal    cases;    number;    to    be    citizens    of 

United  States    r.  s.  4106 

BAIL  BONDS    b.  s.  4117 

in  CHINA 

Establishment  of  United  States  Court 34 : 8 14  June  30, 1906 

Opium,  prosecutions  for  trading  in 24:409  Feb.  23,  1887 

COMPROMISE  OF  SUITS   B.  s.  4098 

CONTEMPTS B.  s.  4104 

DECREES,  See  below,  this  title,  REGxnt-ATiONS 

ESTABLISHMENT     r.  s.  4083 

EVIDENCE,  TAKING  OF   ...r.s.  4097 

EXTENSION  OF  LAWS 

R.  S.  Title  XL VII  extended  to  certain  named 

countries    r.  s.  4125-4127 

R.  S.  Title  XL VII,  future  extension  to  other 
couBtrieu   ,,,.,,,,,,,,,, , . , , .  B.  s.  4129 

669 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 

CONSULAR  COVRT^— Continued 
EXTENSION  OF  LAWS— Continued 

R.   S.   Title  XL VII  further  extended;    future 

extension  of  same  20 :  131  June  14, 1878 

FEES    K.  s.  4117 ;  4120 

FELONIES 

Jurisdiction  of  ministers  to  try  cases  of R.  s.  4090;  4109 

INSURRECTION 

Jurisdiction  of  ministers  to  try  cases  of R.  s.  4090;  4109 

Punishment  to  be  death;  conviction  of  less  of- 
fense lawful    R.  S.  4102 

JUDGMENTS 

Appeals  from,  See  above,  this  title,  AppeaXiS 
Consul  to  give  when  sitting  with  associates  .  . .  .  R.  s.  4106; 4107 
JURISDICTION 

Civil  cases;   treaty  provision;   contracts;    pro- 
viso   R.  s.  4085 

of  Consul  sitting  alone  in  criminal  cases  when 

final    E.  s.  4089 ;  4105 

Criminal  cases;  power  to  try,  sentence  and  is- 
sue process   R.  s.  4084 ;  4090 

Law  to  exercise  and  enforce  defined E.  s.  4086 

of  Minister  exercised  in  any  place  in  the  coun- 
try     R.  s.  4108 

of  Minister,  Secretary  of  State  to  exercise,  if 

no  minister  in  country    B.  S.  4128 

of  Minister,  when  appellate  and  when  original.  .R.  s.  4109 
in  uncivilized  countries  in  civil  and  criminal 

cases  E.  s.  4088 

LAW  APPLICABLE E.  s.  4086 

MARSHALS 

Appointment,  number,  fees  and  salary E.  s.  4111 

Bond,  approval  and  disposal   E.  6.  4113 

Bond,  production  of  original  on  plea  of  non  est 

factum   E.  s.  4115 

Bond,  suits  may  be  brought  on  copy;  how  copy 

obtained    E.  s.  4114 

Process  against,  to  be  executed  by  another  per- 
son     E.  s  4116 

Process,  execution  and  return  of E.  s.  4112 

MURDER 

Jurisdiction  of  ministers  to  try  cases  of E.  s.  4090;  4109 

Punishment  to  be  death;  conviction  of  less  of- 
fense lawful  R.  s.  4102 

NEW  TRIALS,  RULES  FOR r.  s.  4091 

OPINIONS 

Ci\nl  cases;  appeal  to  minister  on  difference  in  e.  s.  4107 
Criminal   cases;    appeal  to  minister  on  differ- 
piice  in R,  5. 4106 


670 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 
CONSULAR  COVRTS— Continued 

PRISONS  AND  PRISONEES 

Keeping  and  feeding  prisoners;  maximum  al- 
lowance, items  23 :234  July  7,1884 

84:295  June  16,  1906 
34:925Feb.  22, 1907 
Keeping  and  feeding  prisoners;  maximum  al- 
lowance, self-supporting  prisoners 23 :330  Feb.  25,  1885 

24:116  July  1,1886 
24:486  Mar.  3, 1887 
25:255  July  11, 1888 
25:704reb.  26,  1889 
26:281  July  14,  1890 
26:1061Mar.  3,  1891 
27:233  July  16,  1892 
27:506Mar.  1,1893 
28:150  July  26,  1894 
28:824Mar.  2,  1895 
29:37Feb.  27,  1896 
29:589Feb.  20,  1897 
80:272Mar.  9,  1898 
30:832Feb.  9,  1899 
31:70  Apr.  4,  1900 
31:893Mar.  2,  1901 
82:87Mar.  22, 1902 
32:819Feb.  9,  1903 
33:79Mar.  12,  1904 
33:927Mar.  3, 1905 
President    authorized   to   make    certain    allow- 
ances for    R.  s.  4121-4123 

Secretary  of  State  authorized  to  make  certain 

allowance  for R.  S.  4124 

Transportation,  payment  of  cost  of  31 :  1450  Mar.  3,  1901 

Transportation  to  place  where  suitable  jail  .  . .  .31: 1450  Mar.  3,  1901 
Transportation  by  State  Department  agent. ..  .31:1450  Mar.  3,  1901 

PROCEDURE    R.  s.  4117 

PROCESS 

Execution  and  return  of  by  marshal   R.  s.  4112 

Execution,  return,  etc.,  minister  to  make  rules 

for    R.  s.  4117 

Issue  by  ministers  authorized U.S.  4091 

against  Marshals,  execution  by  another R.  s.  4116 

PUNISHMENTS 

in  Capital  cases  on  minister's  warrant;  when 

delay  permissible r.  s.  4103 

in  Criminal  cases;  when  decision  of  consul  sit- 
ting alone  is  final   r.  s.  4089 ;  4105 

Manner  prescribed;  severity  according  to  mag- 
nitude of  offense    ....,, r.  s.  4101 


671 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 
CONSULAR  COTJ'RTS— Continued 

KEBELLION 

Punishment  to  be  death;  conviction  of  less  of- 
fense   lawful    E.  s.  4102 

KEFERENCE  OF  SUITS   E.  s.  4098 

EEGULATIONS 

On   a   particular  subject,  see   throughout   this 
title 

Congress  may  annul  or  modify R.  S.  4118 ;  4119 

as  Law,  in  default  of  other  law  applicable  . . . .  b.  s.  4086 
Ministers  to  submit  to  consuls  for  approval.  .  .  .B.  S,  4118 

by  Ministers  with  advice  of  consuls E.  s.  4117 

Publication  necessary  to  give  effect  E.  s.  4118 

Transmitted  to  Secretary  of  State  after  publi- 
cation     E.  8.  4119 

RESPONSIBILITY  OF  OFFICERS E.  s.  4110 

SETTLEMENT  OF  CRIMINAL  CASES 

Allowed  when  case  not  of  heinous  nature E.  s.  4099 

WITNESSES 

Ministers  to  make  rules  as  to  examination  of .  .  .E.  s.  4117 

CONSULAR  SERVICE 

ACCOUNTS 

See  also  below,  this  title,  Repobts  and  Retuens 
Auditor  for  State  and  Other  Departments  to 

examine   28:207  July  31, 1894 

of  Fees  for  judicial  services  to  be  kept  and 

reported     B.  s.  4120 

of  Fees;   verification,  false  swearing  punished 

as  perjury    B.  s.  1728 ;  1729 ;  1747 

Regulations  may  be  made  by  President E.  s.  1752 

of  Seamen 's  extra  wages  to  Treasury b.  s.  4584 

ADMINISTRATORS,    GUARDIANS,    ETC.,    AP- 
POINTMENT AS   32 :546,547  June  30,  1908 

AGENTS 

See  CoMMEBCiAL  Agents 
See  CoNSULAB  Agents 
ALLOWANCE  TO  WIDOW  OR  HEIRS  OF  DE- 
CEASED OFFICER   E.  s.  1749 

APPLICATION  OF  PROVISIONS E.  s.  1689 

ARMY  OFFICERS 

Pay  of  certain  retired  not  withheld  because  oc- 
cupying consular  positions 26:872  Mar.  3,  1891 

Position  vacated  by  appointment  in   consular 

service    b.  s.  1223 

BANKRUPTCY  PROCEEDINGS,  OATHS  IN 30:552  July  1, 1898 

BONDS 

as  Administrators,  etc.,  under  foreign  states; 

penalty;    suit   on    32:546  June  30, 1902 

Neglect  of  duty,  suit  for E.  s.  1735 

President  may  require  of  vice  or  deputy  of- 
ficers     34:101  Apr.  5, 1906 

672 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 
CONSULAR  SERVICE— Continued 

CERTIFICATES 

Attestation  of  statements  of  merchandise  con- 
signed for  sale   26:135  June  10, 1890 

Chinese  extension  of  time  to  return    25:477  Sept.  13, 1888 

of  Chinese  identity  23 :  117  June  5, 1884 

25:476Sept.  13,  1888 

DrawbackB,  certification  to  secure;  fees B.  s.  3045;  3046 

Extradition,    authentication    of    foreign    docu- 
ments     E.  S.  5271 

19:59  June  19,  1876 
22:216Aug.  3,  1882 
False  certificate  to  invoices  or  other  papers; 

penalty    E.  s.  5442 

False   certificate  that   property   owner  United 

States  citizen ;   penalty   E.  s.  1737 

for  Goods  from  adjacent  countries,  restricted  .E.  s.  1717;  2861 

to  Invoices,  See  below,  this  title,  Invoices 

of  Marriage ;  consular  officer 's  duty ;  contents  E.  s.  4082 

Patents,  authority  of  foreign  executor,  etc 32:1227  Mar.3, 1903 

Patents,    authority    of    persons    administering 

oaths    32 :  1226  Mar.  3, 1903 

Prisoners  in  consular  prisons,  inability  to  sup- 
port self   23 :330  Feb.  25, 1885 

24:116  July  1,1886 
24:486Mar.  3, 1887 
25:255  July  11, 1888 
25:704Feb.  26, 1889 
26:281  July  14,  1890 
26:1061Mar.  3, 1891 
27:233  July  16, 1892 
27:506Mar.  1,1893 
28:150  July  26, 1894 
28:824Mar.  2, 1895 
29:37Feb.  27, 1896 
29:589Feb.  20, 1897 
30:272  Mar.  9, 1898 
30:832  Feb.  9, 1899 
31:70  Apr.  4,  1900 
31:893Mar.  2, 1901 
32:87Mar.22, 1902 
32:819  Feb.  9, 1903 
33:79Mar.  12, 1904 
33:927  Mar.  3,  1905 
Trademarks,  authority  of  foreign  officers  tak- 
ing oaths    33 :725  Feb.  20, 1905 

CHANGE  OF  GRADE   E.  s.  1690 

CLERKS 

Appointment   of   thirteen    authorized;    salary, 

etc E.  s.  1704 


673 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 
CONSULAR  SERVICE— Co«f in i/ed 

CLEEKS — Continued 

Exaniination  prescribed   R.  S.  1705 

Removal;  cause  to  be  stated  to  Congress R.  s.  1705 

Salary  after  five  years'  service,  $1,200 18 :70  June  11,1874 

Salary ;  rate  of  increase,  maximum 34 : 923  Feb.  22,  1907 

COMMERCIAX.    AGENCIES.      See    Commercial 

Agencies 
COMMERCIAL      AGENTS.        See      Commercial 

Agents 
COMPENSATION 

Absence,  salaries  not  allowed  during;  sickness 

an   exception    18:77  June  17, 1874 

Absence  with  salaries  not  beyond  sixty  days; 

exception     R.  s.  1742 

Aliens  not   entitled   to   compensation   for   ser- 
vice in  office  mentioned  in  R.  S.  1675 R.  s.  1744 

Diplomatic  functions,  performance  of   R.  s.  1739 

Expenditures  in  excess  of  salary  and  fees  pro- 
hibited      23  :  237  July  7, 1884 

Extra,   when   prohibited    R.  s.  1743 

Fees,  See  below,  this  title,  Fees 

Salaries  to  be  sole ;  exception 34 :  101  Apr.  5,  1906 

Salaries  of  consular  officers  not  citizens,  how 

paid    27 :232  July  16, 1892 

27:504Mar.  1,1893 
28:149  July  26,  1894 
28:823Mar.  2, 1895 
29:36Feb.  27, 1896 
29:588Feb.  20, 1897 
30:271Mar.  9, 1898 
30:831  Feb.  9,  1899 
31:69  Apr.  4,  1900 
31:892Mar.  2,  1901 
32:86Mar.  22, 1902 
32:818Feb.  9, 1903 
33:78Mar.  12, 1904 
CONSULAR  AGENCIES.    See  Consular  Agencies 
CONSULAR  AGENTS.    See  Consular  Agents 
CONSULAR  COURTS.    See  Consular  Courts 
CONSULAR  PUPILS 

Absence  from  post;  limit  of  ten  days  without 

permisrion     18:77  June  17,1874 

CONSULATES.     See  Consulates 
CONSULATES-GENERAL.  See  Consulates-Gen- 
eral 
CONSULS.    See  Consuls 
CONSULS-GENERAL.    See  Consuls-General 
DEFINITIONS 

"Consul,"  as  used  in  R.  S.  Title  XLVII,  in- 
cludes consul-general,  consul  or  vice-consul  .  .  R.  s.  4130 

19:2Feb.  1,1876 

674 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 

CONSULAR  S^'RVIC^— Continued 
DEFINITION— Continued 

"Consul,"  as  used  in  E.  S.  Title  XL VII,  ia- 

cludes  vice-consul-general    B.  s.  2ed  4130 

19:2Feb.  1, 1876 
of  Official  designations  employed  in  K,  S.  Title 

XVIII   B.  s.  1674 

Provisions  of  R.  8.  Title  XVIII  applicable  to 
particular  class  of  officers  to  apply  to  other 

classes    B.  s.  1689 

DEPOSITIONS,  TAKING  OFF   E.  s.  1750 

DEPUTY  CONSULS.    See  Consuls 
DEPUTY  CONSULS   GENERAL.     See  Consuls- 
General 
DIPLOMATIC    FUNCTIONS,    PERFORMANCE 

OF    E.  s.  1738 

DISABILITIES 

Administrators,     guardians,    etc.,    in     foreign 

states,  cannot  act  without  bond  as 32 :  546  June  30, 1902 

Certain  correspondence  prohibited E.  s.  1751 

18:77  June  17, 1874 
Certain  officers  in  Schedule  B  not  to  transact 

business    E.  s.  1699 

Diplomatic  officers,  acting  as  in  certain  cases  . .  E.  s.  1738 
Holding  different  consulates,  etc.,  forbidden  . . .  B.  s.  1691 
Officers  having  salary  exceeding  $1,000  not  to 

transact  business,  practice  law,  etc B.  s.  1700 

34:101  Apr.  5,1906 
Presents  and  titles,  receiving  from  foreign  goT- 

erimient     E.  s.  1751 

18:77  June  17, 1874 
President     may     extend     prohibition     against 

transacting  business  E.  s.  1700 

34:101  Apr.5,  1906 
Profit  from  care  of  seamen,  not  to  make;  ex- 
ceptions   E.  s.  1719 

Recommendations  to  foreign  governments  pro- 
hibited     E.  S.  1751 

18:77  June  17, 1874 

DOCUMENTARY  STAMPS    34:102  Apr.  5, 1906 

ESTATES  OF  DECEDENTS 

Administrators     of     foreign     estates;     bonds, 

breach  of  trust;  penalty .32:546  June  30, 1902 

Duty  of  consuls  and  vice-consuls  as  to B.  s.  1709-1711 

ESTIMATES 

for  consulates,  manner  of  making   33 :  1214  Mar.  3, 1905 

Entire  amount  required  to  be  included  in  ....  22 :  133  July  1, 1882 
FEES 

See  also  above,  this  title,  Compensation 
Accounts,  See  above,  this  title,  Accounts 

Bills  of  health,  for  furnishing   21 : 5  June  2,  1879 

27:450Feb.  15, 1893 

675 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 

CONSTTIAR  SI.'RVICE— Continued 

FEES — Continued 

Coin,  collection  in  domestic,  or  equivalent   . . . .  R.  s.  1746 

Copy  of  rates  annexed  to   clearance  of  vessel 

from  U.  S.  for  foreign  port   E.  S.  4207 

Discharged  seamen,  no  profit  to  be  made  from  .B.  s.  1719 

Exacting  excessive ;  penalty   E.  s.  1723 

Expenditures    to    be    authorized    by    law    when 

paid   solely   by    23 :237  July  7, 1884 

Expenditures  in  excess  of  salary  and  fees  pro- 
hibited      23 :237  July  7, 1884 

for  invoices,  See  below,  this  title,  Invoices 

Judicial  fees,  accounts  kept  and  reported E.  s.  4120 

Liability  to  United  States  for  omission  to  col- 
lect      B.  s.  1724 

Masters  of  vessels  to  be  given  statement  of  . .  .23:56  June  26, 1884 

Notarial  acts,  fees  prescribed  by  President  ..  ,34:101  Apr.  5, 1906 

Omitting    to    collect;    penalties   on    officers   in 

Schedules  B  and  C    b.  s.  1724 

Paid  into  Treasury ;   exception   34 :  101  Apr.  5, 1906 

Payment   by   masters   or   commanders   of   ves- 
sels      E.  s.  1718 

Permanent  annual  appropriation  to  pay  certain  23:56  June  26,  1884 

Prescribed  fees  only  to  be  collected   b.  s.  1745 

Eates  of  fees  to  be  posted   B.  s.  1731 

Receipts  to  be  given;  service  to  be  described 

in   register    B.  s.  1726 ;  1727 

Receipts,  master  to  give  copy  to  first  collector  .  E.  s.  4213 

Registration ;    manner    E.  s.  1727 

Regulation  by  President  E.  s.  1745 

Returns,    See   below,   this   title,   Repoets   and 
Returns 

Revision  by  President  authorized    20 :  273  Jan.  27, 1879 

Secretary  of  State  reports  collections  and  tar- 
iff   changes    B.  s.  208 

of   Vessels    or   seamen    prohibited;    equivalent 

paid   from   Treasury    23 :56  June  26, 1884 

FOREIGN    CONSULAR    OFFICERS    ABROAD. 

See  FoBEiGN  Consulab  Officers  Abroad 
FOREIGN  CONSULAR  OFFICERS  IN  UNITED 
STATES.    See  Foreign  Consular  Officees  in 
United  States 

HOSPITAL  TAX,  COLLECTION  OF  b.  s.  4586 

INTERPRETERS 

Absence  from  post;  limit  of  ten  days  without 

permission     a.  s.  1741 

18:77  June  17, 1874 

Salaries,  consuls  or  consuls-general  cannot  re- 

ceJ^e     23 :233  July  7,  1884 

23:329Feb.  25,  1885 

Salaries,    term    during   which    payable;    allow- 
ance     E.  s.  1740 

676 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 
CONSULAR  SERVICI,— Continued 

INVOICES 

Apportionment  of  charges  for  general  invoices.  R.  s.  2907 

Certification,   conditions  prescribed    b.  s.  1715 

Certification,  penalty  for  false   R.  s.  5442 

Consuls  in  adjacent  countries,  indorsement  by  R.  s.  2856 

Consul's  duties  with  respect  to  quadruplicates    21:173  June  10,1880 

Consul 's  duties  with  respect  to  triplicates   .  . . .  b.  s.  2855 ;  2857 

Consuls,  verification  by   R.  s.  2843 

Declaration  required  to  secure;  contents 26:131  June  10,  1890 

Destruction  after  period  of  five  years  author- 
ized     32 :854  Feb.  24, 1903 

Fees  for  certification  in  British  North  Amer- 
ica     R.  s.  1721 

Fees  for  certification  prescribed  by  President  .34:101  Apr.  5, 1906 
Fees  of  consuls  and  commercial  agents,  $2.50  . .  R.  s.  2851 

Fees,  penalty  for  exacting  excessive  R.  s.  1716 

Fraudulent  practices  to  be  reported  by  consuls 

and  commercial  agents   R.  s.  2863 

Eegistry  of  certification,  etc R.  S.  1727 

Eequirement  of  proof ;  regulations R.  s.  2862 

JUDICIAL,  AUTHORITY 

See  also  Consular  Courts 

in   Certain   countries    E.  s.  4083-4130 

Extension ;    future   extension    20 :  131  June  14,  1878 

LEAVE  OF  ABSENCE 

Limited  to  ten  days  without  permission   R.  s.  1741 

18:77  June  17, 1874 
Salary    r.  s.  1742 

LIST   OF   OFFICERS    R.  s.  208 

MARRIAGES,  SOLEMNIZATION  OF    r.  s.  4082 

MARSHALS.    See  Consular  Courts 

NATURALIZED    PERSONS,    NAMES    OF    RE- 
TURNED     34:601  June  29, 1906 

NAVY   OFFICERS 

Position  vacated  by  appointment  in  consular 

service    E.  s.  1440 

NOTARIAL  ACTS 

Authorization   of   secretaries   of  legation   and 

consular  officers  to  perform E.  s.  1750 

Requirement  of  performance   34:101  Apr.5, 1906 

OFFENSES 

For  other  offenses,  See  throughout  this  title 
Accepting   fiduciary    office    in    foreign    state 

without  giving  bond;  penalty  32:547  June  30, 1902 

Breach  of  trust  as  administrator,  etc.,  in  for- 
eign state ;   penalty    32 :  547  June  30, 1902 

Embezlement,  what  deemed ;  penalty   R.  s.  1734 

30:771Dec.  21, 1898 
Neglect  of  duty,  etc. ;  penalty   R.  s.  1735 

PASSPORTS,  REGISTRY  OF  E.  S.  1727 

677 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 

CONSULAR  SERVICE— Co;; ^iMUfci 

PENSION  CLAIMANTS,  OATHS  TO 57:272  July  26, 1892 

PRESENTS   PROHIBITED    B.  S.  1751 

18:77  June  17, 1874 
PRISONS    AND    PRISONERS.      See    Consular 

COCRTS 

QUARANTINE  REGULATIONS 

Bills  of  health,  fees  for  furnishing 21 : 5  June  2, 1879 

27:450Feb.  15, 1893 

Bills  of  health  for  vessels  from  any  ports 27:450  Feb.  15, 1893 

Bills  of  health  for  vessels  from  infected  ports  .  21:5  June  2,  1879 
Enforcement   of   regulations   for  vessels  from 

infected  ports    21 :6  June  2, 1879 

Reports  of  vessels  sailing  from  infected  ports  .  20:38  Apr.  29,  1878 
Weekly  reports  on  sanitary  condition  of  ports  20:38  Apr.  29, 1878 

21:6  June  2,  1879 
27:451Feb.  15,  1893 
REGULATIONS 

Consular  Regulations,  rewriting  provided  for  .  .28:103  July  16, 1894 

33:928  Mar.  3,  1905 
34:925Feb.  22, 1907 

President  may  make    R.  s.  1695 ;  1752 

REORGANIZATION    34:99  Apr.  5,  1906 

REPORTS  AND  RETURNS 

of  Agricultural  products  and  implements   25:186,  187  June  18, 1888 

Commercial     reports    by    consuls,     commercial 

agents,    etc r.  S.  1712 ;  1713 

25:186  June  18, 1888 
Discussions   of    political,   religious,   etc.,   ques- 
tions not  to  be  published   23:235  July  7, 1884 

23:324Feb.  25, 1885 

of  Documentary  stamps  quarterly    34:102  Apr.  5, 1906 

of  Exports  and  imports,  by  consuls   20:  273  Jan.  27,  1879 

of  Fees  for  all  services;  exception 34:101  Apr.  5, 1906 

of  Fees  by  certain  officers   B.  s.  1725 

of  Fees;  form  prescribed  by  Comptroller  of  the 

Treasury    28:206  July  31,  1894 

of  Fees;  form  prescribed  by  Secretary  of  State  r.  s.  1725 
of  Fees;  oath  on  rendering  account,  penalty   .  .  R.  s.  1728 

Infected  ports,  vessels  sailing  from   20 :38  Apr.  29,  1878 

Lists  of  shipped  and  discharged  seamen,  ves- 
sels, cargoes,  etc B.  s.  1708 

of  Markets  for  domestic  goods,  by  consuls  .  .  .  .20:273  Jan.  27,  1879 
Measure,   weight  and  value,  how  expressed  in 

reports     28 :  150  July  26, 1894 

28:825Mar.  2,  1895 
29  :  38  Feb.  27,  1896 
29:590Feb.  20,  1897 
30:272Mar.  9,  1898 
30:833  Feb.  9, 1899 
31:71  Apr.  4,  1900 

678 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 
CONSULAR  5ERY1CE— Continued 

REPORTS  AND  RETURNS— CoJiiinwed 

Measure,  weight  and  value — Continued  31:894  Mar.  2,  1901 

32:87Mar.  22,  1902 
32:812reb.  9,  1903 
Number  of  consular  reports  printed;  distribu- 
tion     28 :616  Jan.  12,  1895 

Ports,  weekly  on  sanitary  conditions  of 20:38  Apr.  29, 1878 

21: 6  June  2, 1879 
27:  451  Feb.  15,  1893 
Prices  current  to  be  furnished  as  required  ...  ,E.  s.  1713 

20:98  June  4, 1878 
25:186  June  18, 1888 

Regulations  may  be  made  by  President   E.  s.  1752 

Revenue,  consuls  to  report  fraudulent  practices 

on     B.  s.  2863 

of  Services  to  American  vessels  and  seamen  . .  .23:56  June  26,  1884 
Statistics   for   Department    of    Commerce    and 

Labor 32 :  827  Feb.  14, 1903 

of  Wages  in  foreign  countries  to  be  made  an- 
nually by  consuls   20:274  Jan.  27, 1879 

SALARIES,  See  above,  this  title,  Compensation 

SCHEDULES    B.  s.  1690 

34:99Apr.  5,  1906 
SEAMEN 

Comanding  officer  of  U.  S.  fleet,  vessel,  etc., 
when  on  high  seas  or  in  foreign  port  may 

exercise  powers  of  consul  over   E.  s.  1433 

Compensation   for   services   to,   payment   from 

Treasury    23 :56  June  26, 1884 

Deceased  seamen,  disposal  of  effects  of E.  s.  4539 ;  4541 

29:689Mar.  3,  1897 
Deserting  seamen,  reclamation  and  discharge  . .  E.  s.  4600 

23:55  June  26, 1884 
30:761Dec.  21,  1898 

Discharge  and  payment  of  wages  E.  s.  4580 

23:54,  55  June  26,  1884 

Discharge,  collection  of  extra  wages  on   e.  s.  4580;  4581 

23:54  June  26, 1884 

Discharge  without  extra  wages    E.  s.  4583 

Discharge,  inquiry  on;  wages  and  transporta- 
tion     30 :760  Dec.  21,  1898 

Discharge  when  vessel  unseaworthy   E.  s.  4561 

23: 54  June  26,  1884 

30:758Dec.  21,  1898 

Discharge  when  voyage  wrongfully  prolouged  .  .  23  :54  June  26,  1884 

Discharge  seamen,  no  profit  from    B.  s.  1719 

Expenses  paid  out  of  wages   B.  s.  4581 

23:55  June  26,  1884 
25:80  Apr.  4,  1888 
Fees  for  service  to,  prohibited 23 :56  June  26, 1884 

679 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 
CONSULAR  SE^YICE— Continued 

SEAMEN— Continued 

Indorsement  on  articles  when  vessel  sold  abroad30:759  Dec.  21, 1898 
Liability  to  United  States  for  not  collecting 

wages   of    B.  s.  4581 

23:55  June  26, 1884 
30:759Dec.  21, 1898 

Lists   and   returns  of    R.  s.  1708 

Neglect  of  duty  to ;  penalty B.  s.  1736 

Eeturn,   provisions   for    E.  s.  4577 :  4578 

23:55  June  26, 1884 

Shipment   of    R-  S.  4517 ;  4518 

Shipment,  authorized  oflScers  only  may  receive 

fees   for    23 :55  June  26, 1884 

Ships '  stores  examined  on  complaint  of  R.  s.  4565 

Wages,  disposal  of  extra   K.  s.  4584 

STATISTICS    FOE    DEPAETMENT    OF    COM- 

MEECE  AND  LABOE  33 :827  Feb.  14, 1903 

TEANSIT 

Allowance  for  time  in  making R.  S.  1740 

Allowance    of    time    restricted    to    established 

period    18 :70  June  11,  1874 

Allowance  to  widow  or  heirs  of  deceased  con- 
sular officer    R.  s.  1749 

Secretary  of  State  to   determine  and  publish 

time  required  for  each  post  18 :70  June  11, 1874 

VESSELS '  PAPEES,  EETENTION  OF  R.  s.  1718 

VICE-COMMEECIAL  AGENTS.    See  Commercial 

Agents 
VICE-CONSULATES.    See  Consulates 
VICE-CONSULS.    See  Consuls 
VICE-CONSULS-GENEEAL.      See    Consuls-Gen- 
ebul 

CONSULATES 

See  also  Commercial  Agencies 

See  also  Consular  Agencies 

Clerks  receiving  $1,000  or  more  must  be  U.  S.  cit- 
izens      34 :  101  Apr.  5, 1906 

Estimates  for,  manner  of  making 33 :  1214  Mar.  3, 1905 

Extent  of  territory  embraced.  President  may  de- 
fine      R.  s.  1695 

Fees  for  official  services  prescribed  by  President   . .  r.  s.  1745 

Holding  office  at  different  consulates  prohibited  to 

consuls-general  and  consuls    R.  s.  1691 

Inspectors,  five  consulB-general  at  large  as   34 :  100  Apr.  5, 1906 

Inspectors,   provisions   aj)j)licable  to   bonds    34:101  Apr.  5,  1906 

Invoifes  filed  in  may  be  destroyed  after  five  years  .  .32:854  Feb.  24, 1903 

Medical  officers,  detail  authorized    27 :450  Feb.  15, 1893 

Medical  officers,  detail  of  not  more  than  six 21:5  June  21, 1879 

Medical  officers  to  give  bills  of  health  for  vessels 

from  any  ports j    fees 27 :450  Feb.  15, 1893 

680 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 

CONSTJIATES — Continued 

Medical  officers  to  give  bills  of  health  for  vessels 

from  infected  porta ;    fees    21:5  June  2, 1879 

Principal  officers  entitled  to  certain  fees  collected 

by   subordinates    E.  s.  1703 

Public  documents  for    a.  s.  504 

Stationery,  books,  etc.,  President  to  provide  for  . . .  R.  s.  1748 

Suspension  of  officers  if  business  not  properly  con- 
ducted      34 :  100  Apr.  5, 1906 

Vice-consulates,  excess  of  fees  above  $1,000  re- 
ceived  at    E.  s.  1733 

Vice-conaulates,  expenses  of ;  allowance  limited  . E.  s.  1696 

CONSULATES-GENERAL 

Clerks   receiving  $1,000   or  more  must  be   United 

States    citizens    34 :  101  Apr.  5,  1906 

Suspension  of  officers  if  business  not  properly  con- 
ducted      34:100  Apr.  5, 1906 

CONSULS 

See  also  Consular  Service 
ABSENCE  FEOM  POST 

Limit  of  ten  days  without  permission  R.  s.  1741 

18:77  June  17, 1874 

ACCOUNTS    OF    FEES    R.  s.  1729;  1747 

APPOINTMENT 

in  Place  of  commercial  agents   E.  s.  1690 

as  Vice  and  deputy  officers;  limit,  one  year  . .  .34:100  Apr.  5, 1906 
BONDS 

Conditions;   amount   E.  s.  1697 ;  1699 ;  1700 

30:770Dec.  21,  1898 
34:101Apr.  5,  1906 

Deposited  with  Secretary  of  the  Treasury E.  s,  1697 

30:770Dec.  21, 1898 
Suits  on;  procedure,  service  of  process,  appear- 
ance     30:  770,  771  Dec.  21, 1898 

Suits  on,  for  transacting  business E.  s.  1701 

DEFINITION 

Full   permanent  officer   as  distinguished  from 

subordinate     E.  s.  1674 

Use  of  term  in  E.  S.  Title  XL VII  R.  s.  4130 

19:2Feb.  1,1876 
DEPUTY  CONSULS 

Additional  compensation  for  acting  as  consuls  .34:101  Apr.  5,  1906 

Appointment  regulated  by  President  R.  s.  1695 

Appointment ;  temporary  service  of  consuls  as  .  34 :  100  Apr.  5, 1906 

Bonds  may  be  required  by  President R.  s.  1700 

Definition r.  s.  1674 

Salary,   allowance   during  instructions  prohib- 
ited     R.  s.  1740 

Transacting  business,  when  President  may  for- 
bid     K.  S.  1700 


681 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 
CONSULS — Continued 

DISABILITIES 

Holding  different  consulates,  etc.,  forbidden  ..R.  s.  1691 
Secretaries'    or    interpreters'    salaries,    cannot 

receive     23 :233  July  7, 1884 

23:329Feb.  25,  1885 
Transacting  business,  legal  practice,  etc.,  when 

forbidden    R-  s.  1699 ;  1700 

34:101Apr,  5, 1906 

Transacting  business ;  penalty   R-  s.  1701 

FEES 

Accounts,  See  above,  this  title,  Accounts  of 

Fees 
Canadian  ports,  vessels  touching  at;  when  ex- 
empt   from     B-  S-  4222 

Excess  received  above  $1,000  held  subject  to 

Secretary  of  the  Treasury's  order   B..B.  1733 

Expenditure  of  fees  when  paid  both  in  salary 

and  in  fees    23 :237  July  7, 1884 

Foreign  moneys  to  be  received  for,  in  Canada  .  R-  s.  1722 

Invoices,  verification  of    R-  s.  2851 

Omitting  to  collect ;  penalty  R-  s.  1724 

Eestriction  on  collection  from  vessels  making 

weekly  or  monthly  trips   R-  S.  1720 

Returns  when  part  of  compensation;  form   ...R.  s.  1725 

28:206  July  31,  1894 

Salaries  determined  by   R-  s.  1702 

Schedules  B  and  C,  consuls  not  in;  excess  over 

$2,500    held    subject    to    Secretary    of     the 

Treasury 's    order    

Schedules  B  and  C,  consuls  not  in ;  paid  from  R.  s.  1732 

fees    received     

JUDICIAL   AUTHORITY.     See   Consular   See-  r.  s.  1730 

VICE — .Judicial  Authority 
OFFENSES 

False  certification ;   penalty    

False    certification    of    property ;    penalty    for  R.  s.  5442 

making     

Fees,  omitting  to  collect;  penalty   R-  s.  1737 

Neglect  of  duty  to  seamen ;  penalty   R.  s.  1724 

Transacting   business ;    penalty    R.  S.  1736 

OFFICE  RENT    R.  s.  1701 

POWERS  AND  DUTIES  R.  s.  1706 

Acting  as  vice  and  deputy  officers;  limit   

Commanding  officers  may  have  consuls'  powers  34:100  Apr.  5, 1906 

over    seamen    

Coolies,  certificate  of  voluntary  immigration  ..R.  s.  1433 
Coolies,  inquiry  if  immoral  contract  exists  ...R.  s.  2162 
Court  records,  certifying  service  of  notice  to   18:477  Mar.  3,  1875 

■upply   20:  277  Jan.  31, 1879 

Estates  of  decedents   , , ?i-  8. 17(^ ;  1710 

683 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 

CONSULS — Continued 

POWERS  AND  DUTIES — Continued 

Hearing  protests  or  declarations E-  s.  1707 

Invoices,  duties  with  respect  to  quadruplicates 

Qf    21 :  173  June  10, 1880 

Invoices,  duties  with  respect  to  triplicates  of  . .  r.  s.  2855;  2857 
Invoices,  indorsement  in  adjacent  countries   ..b.  s.  2856 

Invoices  produced  to  consuls    .26:131June  10, 1890 

Invoices,   verification   of    R-  S.  2843 

Naval  supplies  purchased  by  paymasters,  cer- 
tificates as  to  ruling  market  prices   E.  S.  3723 

Oaths  to  patent  or  copyright  applicants,   ad- 
ministration of    E.  s.  4892 

32:1226Mar.  3, 1903 

Postage  on  letters  for  United  States;  payment, 

repayment    e.  s.  4014 

Privateer  pension  fund,  charge  of ;  payment  . .  r.  s.  4759 ;  4760 

Seamen,  provisions  for  return  of R.  8.  4577 ;  4578 

23:55  June  26,  1884 
Ship's  papers,   delivery   of   to  master;    condi- 
tions      E.  s.  4309 

Specification  of,  how  construed  E.  s.  1714 

Suits  to  recover  penalty  for  failure  to  deposit 

papers     E.  s.  4310 

Trademarks,  verifications  of  applications   33 :  725  Feb.  20, 1905 

Vessels,  appointment  of  inspectors  to  determine 

seaworthiness E.  s.  4559 

30:757  Dec.  21, 1898 

Vessels,  care  of  stranded   E.  s.  4238 

Vessels,  determination  of  seaworthiness   E.  s.  4560 

RECORDS  AS  EVIDENCE    r.  s.  896 

REPORTS  AND  RETURNS 

of  Agricultural  statistics  monthly   25 :  186  June  18, 1888 

Commercial  reports  to  be  made  when  required  .  R.  s.  1712 

25:186  June  18, 1888 

of  Exports  and  imports ;  contents 20 :  273  Jan.  27, 1879 

of  Fees,  when  part  of  compensation ;  form  . . . .  R.  s.  1725 

28:206  July  31, 1894 

of  Markets  for  domestic  goods   20 : 273  Jan.  27, 1879 

Revenue,  reports  of  fraudulent  practices  on  . .  .  r.  s.  2863 
of  Wages  in  foreign  countries  to  be  made  an- 
nually    20 :274  Jan.  27, 1879 

SALARIES 

Classification  of  Apr.  5,  1906   34:99  Apr.  5, 1906 

Expenditures  of  fees  when  paid  both  in  salary 

and  in  fees   23 :237  July  7, 1884 

Fees  as  determining    R.  s.  1702 

Schedules  B  and  C,  if  in  R.  s.  1690 

Schedules  B  and  C,  if  not  in  R.  s.  1730 

Term  during  which  payable ;  allowances  .,.,,,  |t.  s.  1740 


683 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 

CONSJJLS— Continued 
SUITS  AGAINST 

District  courtB  have  jurisdiction;  exception   . . .  B.  s.  563  par.  17 

SUSPENSION     34:100  Apr.  5,  1906 

VICE-CONSULS 

Additional  compensation  for  acting  as  consuls.  34: 101  Apr.  5, 1906 
Alien    vice-consul   temporarily    acting   as   con- 
sul may  receive  compensation   18 :70  June  11, 1874 

Appointment  regulated  by  President   B-  S.  1695 

Appointment;  temporary  service  of  consuls  as  .34:100  Apr.  5, 1906 

Bonds ;    amount  of,  conditions    E-  s.  1698 

30:771  Dec.  21, 1898 

Bonds  may  be  required  by  President  b.  s.  1700 

Bonds,  suits  on;  service  of  process,  appearance, 

etc 30 :771  Dec.  21, 1898 

' '  Consuls ' '  to  include,  in  R.  S.  Title  XL VII  .  k.  s.  4130 

Definition     K.  S.  1674 

District  courts'  jurisdiction  of  suits  against; 

exception     R.  s.  563  par.  17 

Estates  of  decedents,  duties  as  to b-  s.  1709;  1710 

False  certification ;   penalty    R-  s.  5442 

False    certification    of    property,    penalty    for 

making    E.  s.  1737 

Fees,  accounting  for   J^-  S.  1729 ;  1747 

Fees   may   be   received  in   foreign  moneys  in 

Canada,  rate    e.  s.  1722 

Fees,  omitting  to  collect ;  penalty b.  s.  1724 

Fees;  returns  when  part  of  compensation,  form  b.  s.  1725 

28:206  July  31, 1894 
Invoices,  duties  with  respect  to  quadruplicates 

of     21 :  173  June  10, 1880 

Invoices,  duties  with  respect  to  triplicates  of  .  .  b.  s.  2855 ;  2857 
Invoices,  indorsement  in  adjacent  countries  . . .  B.  s.  2856 

Invoices   produced   to    26 :  131  June  10, 1890 

Judicial  authority.     See  Consulab  Sebvicb — 
Judicial  Authoeity 

Powers  and  duties,  construction  of b.  s.  1714 

Protests  and  declarations  may  be  heard  by  .  . .  b.  s.  1707 
Records,  copies  of  in  offices  of  as  evidence   . . .  B.  s.  896 

Salaries  not  allowed  during  instructions B.  s.  1740 

Salaries  prescribed  by  President   B.  s.  1703 

Salaries,  from  what  paid   B.  8.  1695 

Seamen,  provisions  to  be  made  for  return  of  .  .  b.  s.  4577 ;  4578 

23:55  June  26,  1884 
Ship's  papers,   delivery  of   to  master;    condi- 
tions      E.  s.  4309 

Suits  to  recover  penalty  for  failure  to  deposit 

papers    B.  s.  4310 

Transacting  business,  when  President  may  for- 
bid     B.  8. 1700 

Vessels,  oare  of  stranded   b.  s,  4238 


684 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 

CONSULS-GENERAL 

See  also  Consular  Service 
ABSENCE  FKOM  POST 

Limit  of  ten  dayi  without  permiBsion  R.  s.  1741 

18:77  June  17, 1874 

ACCOUNTS    OF    FEES    R.  s.  1747 

APPOINTMENT 

in  Place  of  consuls  or  commercial  agents R.  s.  1690 

BONDS 

Conditions;   amount   B.  S.  1697  ;  1699 

30:770Dec.  21,  1898 
34:101  Apr.  5,  1906 

Deposited  with  Secretary  of  the  Treasury   R.  s.  1697 

30:770Dec.  21, 1898 
Suits  on;  procedure,  service  of  process,  appear- 
ance     30:770,  771  Dec.  21, 1898 

Suits  on,  for  transacting  business R.  s.  1701 

DEFINITION    K.  s.  1674;  4130 

DEPUTY  CONSULS-GENEEAL 

Additional  compensation  for  acting  as  consuls- 
general    34:101  Apr.  5,  1906 

Appointment ;  temporary  service  of  consuls  as  .  34 :  100  Apr.  5, 1906 
DISABILITIES 

Holding  different  consulates,  etc.,  forbidden   . .  r.  s.  1691 
Secretaries'    or    interpreters'    salaries,    cannot 

receive    23 :233  July  7, 1884 

23r3?OT;^'>b.  25,  1885 
Transacting  business,  legal  practice,  etc.,  when  ^ ' 

forbidden    R.  s.  1699 

34:101  Apr.  5, 1906 

Transacting  business;    penalty    K.  p  ""^Ol 

FEES 

Excess  received  above  $1,000  held  subject  to 

Secretary  of  the  Treasury 's  order  r.  S.  1733 

Omitting  to  collect ;  penalty   r.  s.  1724 

Keturns  when  part  of  compensation;  form   .  . .  .r.  s.  1725 

28:206  July  31, 1894 
Schedules  B  and  C,  if  in;  accounting  to  Secre- 
tary of  the  Treasury,  etc r.  s.  1747 

Schedules  B  and  C,  if  not  in;  salary  to  consist 

of    R.  s.  1730 

INSPECTORS  OF  CONSULATES,  See  below,  this 

title,  AT  Large 
at  LARGE 

Inspectors    of    consulates;    appointment,    pow- 
ers and  duties,  bonds    34 :  100, 101  Apr.  5, 1906 

OFFICE    RENT     r.  s.  1706 

POWERS  AND  DUTIES 

"Consuls"  to  include,  in  R.  S.  Title  XLVII  .  .R.  s.  4130 

Coolies,  inquiry  if  immoral  contract  exists  ....  IS  :477  Mar.  3, 1875 


685 


INDEX  ANALYSIS  OF  FEDERAL  STATUTES 

CONSULS-GENERAL— Con/im/ed 
SALARIES 

Aliens   not   entitled   to   compensation   for   ser- 
vice in  office  mentioned  in  K.  S.  1675 R.  s.  1744 

Classification   of   Apr.   5,    1906    34 :99  Apr,  5, 1906 

Prescribed  at  certain  posts    R.  S.  1675 

Schedules  B  and  C,  if  in   R.  S.  1690 

Schedules  B  and  C,  if  not  in R.  s.  1730 

Term  during  which  payable,  allowances R.  s.  1740 

SUSPENSION    34 :  100  Apr.  5,  1906 

VICE-CONSULS-GENERAL 

Additional    compensation    for    acting    as    con- 
suls-general      34 :  101  Apr.  5, 1906 

Appointment,  temporary  sen'ice  of  consuls  as  .34:100  Apr.  5,  1906 
Bonds,  suits  on ;  service  of  process,  apearanco, 

etc 30 :771  Dec.  21,  1898 

"Consuls"  to  include,  in  R.  S.  Title  XL VII  .  .R.  s.  2ed  4130 

19:2Feb.  1,1876 
FOREIGN  CONSULAR  OFFICERS  ABROAD 

Verification    of   invoices    R.  S.  2844 

FOREIGN  CONSULAR  OFFICERS  IN  UNITED 

STATES 

Awards,  etc.,  enforcement  of  R.  s.  728 

Chinese  exclusion  regulations,  not  subject  to  25:479  Sept.  13, 1888 

Clearance,    foreign    ship's     papers     delivered    only 

after ;    penalty    r.  s.  4211 

Immi^ation  act  not  to  apply  to   34:910  Feb.  20,  1907 

Seamen   in   certain   disputes,   etc.,  procurement   of 

arrest     r.  s.  4079-4081 ;  5280 

Suits  against,  U.  S.  courts  to  have  exclusive  juris- 
diction of   R.  s.  711 


686 


CONSOLIDATED  INDEX  TO  UNITED  STATES  STATUTES  AT 

LARGE 


COMMERCIAL  AGENTS 

Page.  Vol. 

General  act  for  appointment  of,  at  sundry  places  621,  622,  623  10 

May  transact  other  business   621  10 

Kesident  citizens  only  to  be  appointed 623  10 

Bonds   of    623  10 

Pay  of,  when  to  commence  and  cease 623  10 

Fees    of    623,624  10 

Forbidden  to  be  interested  in  profits  from  seamen  ....        624  10 

Duties   of,   as   to   seamen    624, 625  10 

Penalties    on    625  10 

Liable  in  damages  for  neglect  of  duties 625  10 

Eecord  books  of   626  10 

Archives   of    626  10 

Salaries  of,  established  at  certain  places  in  Liberia  ...          55  11 

Nicaragua     54  11 

Portugal    54  11 

Russia  in  Asia  55  11 

Santo  Domingo   (island)    54, 55  11 

In  all  other  places  to  be  paid  by  fees  55  11 

Consuls  or  consuls-general  may  be  appointed  instead  of         53  11 

Pay   of    54,  55,  57  11 

Judicial    authority    of,    in    uncivilized    countries    (see 

Consuls)     78  12 

Appropriations,   etc.,    for    335,  336,  638  12 

Appropriations  for  salaries  of    138,  422  13 

Salaries  of  certain,  established   139  13 

Office  of,  at  Hakodadi,  changed  to  that  of  consul  ....        140  13 

Appropriations  for  expenses,  etc.,   of    225  14 

Fees  of  certain,  to  be  accounted  for  226  14 

Excess  of,  over  $2,500,  above,  etc.,  to  be  paid,  etc.       226  14 

Appropriations  for   57,  319,  320  15 

Appropriations  for  salaries,  etc.  of 143,  144,  472  17 

Appropriations  for  salaries  of  67,  322,  414  18 

Compensation    of    68  18 

Leave  of  absence,  correspondence,  etc.,  of   77  18 

Appropriations  for  salaries  of  (see  consular  officers)  171,  233  19 

Appropriations  for  salaries  of 97,  115,  268  20 


Year. 
1851-1855 
1851-1855 
1851-1855 
1851-1855 
1851-1855 
1851-1855 
1851-1855 
1851-1855 
1851-1855 
1851-1855 
1851-1855 
1851-1855 
1855-1859 
18.55-1859 
1855-1859 
1855-1859 
1855-1859 
1855-1859 
1855-1859 
1855-1859 


1859- 
1859- 
1863- 
1863- 
1863- 
1865- 
1865- 
1865- 
1867- 
1871- 
1873- 
1873- 
1873- 
1875- 
1877- 


1863 
1863 
1865 
1865 
1865 
1867 
1867 
1867 
1869 
1873 
1875 
1875 
1875 
1877 
1879 


^This  is  an  extract  from  the  CONSOLIDATED  INDEX  TO  UNITED 
STATES  STATUTES  AT  LARGE  of  which  only  twenty-five  copies  were  printed. 
Although  the  arrangement  is  poor  it  will  be  found  serviceable  in  many  instances. 


687 


CONSOLIDATED  INDEX  TO  STATUTES 

COMMERCIAL  AGENTS— Con <m wed 

Page.  Vol.        Year. 

Shall  make  reports  of  exports,  imports,  etc 273  20  1877-1879 

Of  rates  of  wages   274  20  1877-1879 

Appropriation   for   salaries   of    139, 344  21  1879-1881 

Appropriations  for  salaries  of   133  22  1881-1883 

Appropriation  for  salaries  of    229,  325  23  1883-1885 

(See  Diplomatic  and  Consular  Service)    26  1889-1891 

"  "  •«  27  1891-1893 

Appropriation    for    salaries     145, 819  28  1893-1895 

Appropriation    for    32, 584  29  1895-1897 

Appropriation    for    267, 828  30  1897-1899 

Bonds  of,  prescribed    770  30  1897-1899 

Embezzlement   defined ;    penalty    771  30  1897-1899 

Appropriation  for  salaries    65  31  1899-1901 

COMMERCIAL  AGENTS  AND  AGENCIES 

Appropriations  for  pay  and  expenses  of 413,  414  14  1865-1867 

No  pay  to  any  agent  who  is  not  a  native  or  naturalized 

citizen  of  the  United  States 414  14  1865-1867 

Appropriations    for    219,  220,  417,  418  16  1869-1871 

COMMERCIAL  AGENCIES 

Establishment  of  Schedules  C  and  B 69  18  1873-1875 

CONSULAR  ACCOUNTS 

Appropriation  for   agents  to  examine,  to  cease  after 

June   30,    1873    143  17  1871-1873 

Law  authorizing  such  agents,  repealed   143  17  1871-1873 

CONSULAR  AGENCIES 

Expenses  of,  not  to  exceed  $500  a  year   58  15  1867-1869 

Limit  to  allowance  to,  for  expenses 322  15  1867-1869 

CONSULAR  AGENTS 

Appointment  of,  act  concerning   57  11  1855-1859 

Pay  of    57  11  1855-1859 

At  St.  Thomas,  reimbursement  of   106  11  1855-1859 

Not  to  exact  tonnage   fees   on   United   States  vessels 

touching  at  ports  in  Canada,  unless,  etc 260  15  1867-1869 

Appropriations    for    57,319  15  1867-1869 

Seals  to  be  furnished  to,  by  the  Secretary  of  State  (see 

Consular    Officers)     473  17  1871-1873 

Provisions    concerning     leave     of     absence    of,    corre- 
spondence,  etc 77  18  1873-1875 

(See  Consular  Officers)    19  1875-1877 

Convention  with  Italy  concerning  rights,  etc.,  of 725  20  1877-1879 

CONSULAR  ARCHIVES 

Declared  to  be  inviolaljle,  in  the  treaty  with  the  Aus- 

tro-IIungarian    monarchy    824  17  1871-1873 

In  treaty  with  the  German  Empire   923, 924  17  1871-1873 

Declared  to  be  inviolable,  in  the  treaty  with  Peru 713  18  1873-1875 

In  the  treaty  with  Salvador 745  18  1873-1875 

In  the  treaty  with  the  Orange  Free  State 751  18  1873-1875 

688 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULAR  BILLS  OF  HEALTH 

Page.  Vol.        Year. 

Not  required  from  ports  on  frontier,  etc 372  28  1893-1895 

CONSULAR  CERTIFICATES 

Kequired  for  voluntary  emigration  of  Chinese  subjects       341  12  1859-1863 

Not  to  be  given,  unless,  etc 341  12  1859-1863 

CONSULAR  CLERKS 

President  may  appoint   thirteen    139  13  1863-1865 

Their  age,  duties,  and  pay   139  13  1863-1865 

To  be  examined  140  13  1863-1865 

Not  to  be  removed  without  cause 140  13  1863-1865 

Appropriations   for  pay  of    413  14  1865-1867 

Appropriations  for  thirteen   319,  320  15  1867-1869 

Appropriations  for  salaries  of 219,  220,  417  16  1869-1871 

Appropriations   for  pay   of    143, 472  17  1871-1873 

Appropriation  for  salaries  of    67,322,414  18  1873-1875 

Salary  of,  serving  continuously  five  years  and  upward         70  18  1873-1875 

Appropriations  for  salaries  of    171,  233  19  1875-1877 

Appropriations  for  salaries  of 97,  273  20  1877-1879 

For  deficiencies  in    115  20  1877-1879 

Appropriation  for  salaries  of    135,  340,  344  21  1879-1881 

Appropriations  for  salaries  of  129,  425  22  1881-1883 

Appropriations  for  salaries  of    229,233,325,329  23  1883-1885 

Additional  compensation  to;   proviso    233,329  23  1883-1885 

Deficiency  appropriation  for  allowance  to 260,  470  23  1883-1885 

Appropriation  for 115,  485  24  1885-1887 

Appropriation    for    253,  703  25  1887-1889 

Appropriation    for    280,  1060  26  1889-1891 

Appropriation    for    salaries    231, 504  27  1891-1893 

Appropriation    for    salaries     148, 823  28  1893-1895 

Appropriation  for  salaries   36,  588  29  1895-1897 

Appropriation   for    271, 831  30  1897-1899 

For  bringing  home  remains   265,  826  30  1897-1899 

Appropriation  for  salaries    69, 892  31  1899-1901 

For  bringing  home  remains    64,  886  31  1899-1901 

Appropriation   for    85,817  32  1901-1903 

CONSULAR  COURTS 

(See  Consuls;  Ministers)    12  1859-1863 

In  Canton,  appropriation  for  marshal  for 21  12  1859-1863 

Act  establishing  in  China,  Japan,  Siam,  etc 72-79  12  1859-1863 

Eepeal  of  former  inconsistent  acts   79  12  1859-1863 

When  act  takes  effect   79  12  '  1859-1863 

Appropriations  for,  in  China,  Japan,  Siam,  and  Tur- 
key    171, 336, 639,  648  12  1859-1863 

Salaries  of  marshals  of    139,  424  13  1863-1865 

Appropriation  for  certain  expenses  of 225,  414  14  1865-1867 

Appropriation  for  expenses  of  58,  321  15  1867-1869 

For  salaries  of  marshals  of   58,  321  15  1867-1869 

In  China  and  Japan,  appeali  from  final  judgments  of       184  16  1869-1871 

689 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULAR  COURTS— Continued 

Page.  Vol.  Year. 
Appropriations  for  salaries  of  marshals  for,  in  Japan, 

China,  Siam,  and  Turkey  220,  417  16  1869-1871 

Appropriations   for  marshals  for    144, 473  17  1871-1873 

In  Ottoman  dominions  or  Egypt  may  be  suspended  by 

the  President   when    23-24  18  1873-1875 

Acceptance  of  jurisdiction  of  certain  tribunals  during 

such    suspension     24  18  1873-1875 

Jurisdiction  of,  in  Samoan  Islands 704  20  1877-1879 

Appropriation  for  salaries  of  marshals  at 234,  330  23  1883-1885 

To  try  cases  of  illegal  opium  traffic   409  24  1885-1887 

Appropriation    for    marshals    233, 505  27  1891-1893 

Appropriation  for  marshals   150,  824  28  1893-1895 

Appropriation    for   marshals    272,832  30  1897-1899 

Deficiency   appropriation  for    1214  30  1897-1899 

For    marshals     654  30  1897-1899 

Appropriation  for  salaries  of  marshals 70,  893  31  1899-1901 

Penitentiary  for  confining  convicts,  etc 1451  31  1899-1901 

CONSULAR  AND  DIPLOMATIC  APPROPRIATIONS 

For  salaries  and  expenses  of  diplomatic  officers 170,  233  19  1875-1877 

Of  consular  officers 171,  174,  233,  237  19  1875-1877 

For  Spanish  Claim  Commission   175,  238  19  1875-1877 

For  rent  of  prisons,  courts,  etc.,  in  China,  Japan,  etc.  .175,  238  19  1875-1877 

For  bringing  home  persons  charged  with  crime 175,  238  19  1875-1877 

For  relief  and  protection  of  American  seamen 175,  238  19  1875-1877 

For  rescuing  shipwrecked  Americans   175,  238  19  1875-1877 

For  expenses  of  neutrality  act 175,  238  19  1875-1877 

For  expenses  of  Cape  Spartel  light   175,  238  19  1875-1877 

For  allowances  to  widows,  etc.,  of  deceased  officers  .  .175,238  19  1875-1877 

For  diplomatic  officers    92,  267  20  1877-1879 

For  consular   officers    92, 268  20  1877-1879 

For  courts  and  commissions   98,  273,  274  20  1877-1879 

For  shipping  and   discharging  seamen    97,273  20  1877-1879 

For  prisons  and  prisoners    98,  274  20  1877-1879 

For   relief  and  protection  of   seamen    98,274  20  1877-1879 

For  rescuing  shipwrecked  Americans   98,  274  20  1877-1879 

For  Cape  Spartel  light   98,  274  20  1877-1879 

For  expenses  under  neutrality  act   98,  274  20  1877-1879 

For   diplomatic   officers    134, 339  21  1879-188] 

For   consular   officers    134, 340  21  1879-188] 

For  shipping  and  discharging  seamen   140,  345  21  1879-188] 

For  prisons  and   prisoners    140,  345  21  1879-188] 

For  relief  and  protection  of  seamen  140, 345  21  1879-188] 

For  rescuing  shipwrecked  Americans   140,  345  21  1879-188] 

For  Cape  Spartel  light   140,  345  21  1879-188] 

For  expenses  under  neutrality  act   140,  345  21  1879-188] 

For  Spanish  Claims  Commission   140,  345  21  1879-188] 

For  allowance  to  widows,  etc.,  of  deceased  officers  .  . .  140,  345  21  1879-188] 
For   compensation   and   expenses   of   commissioners   to 

negotiate  treaty  with  China  133  21  1879-1881 

690 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULAR  AND  DIPLOMATIC  APPROPRIATIONS— Cow^inwed 

Page.  Vol.         Year. 

For  contingent  expenses  of  foreign  intercourse,  etc.  ..134,340  21  1879-1881 

For  loss  by  exchange  on  consular  service  139,  345  21  1879-1881 

For  packing  the  laws  for  consular  service 23,  216, 391  21  1879-1881 

For  diplomatic  officers 128,  424  22  1881-1883 

For  consular  ■  officers    128,  425,  429  22  1881-1883 

For  shipping  and  discharging  seamen    135,  430  22  1881-1883 

For  prisons,  etc 134,  430  22  1881-1883 

For  relief  and  protection  of  seamen 135,  430  22  1881-1883 

For  rescuing  shipwrecked  Americans   135,  430  22  1881-1883 

For  Cape  Spartel  and  Tangier  light 135,  430  22  1881-1883 

For  expenses  under  neutrality  act    135,  430  22  1881-1883 

For  expenses  of  French  and  American  Claims  commis- 
sion            430  22  1881-1883 

For  allowance  to  widows,  etc.,  of  deceased  officers  . .  .135,430  22  1881-1883 

For  contingent  expenses  of  consulates 134,  429  22  1881-1883 

For  loss  by  exchange  on  consular  service,  etc 134,  429  22  1881-1883 

For  printing  and  distributing  consular  and  other  com- 
mercial   reports     135, 430  22  1881-1883 

For  contribution  to  maintenance  of  International  Bu- 
reau of  Weights  and  Measures 135,  430  22  1881-1883 

For  expenses  of  civilian  experts  to  International  Com- 
mission,   etc.,    for    establishment    of     electrical 

units     302  22  1881-1883 

For  Internation  Prison  Commission   235  23  1883-1885 

For  pay  of  expenses  of  civilian  experts  to  Interna- 
tional Commission  for  Establishment  of  Elec- 
trical Units    235  23  1883-1885 

For  repairs,  etc.,  to  monument  to  Benjamin  A.  Bidlack 

in  cemetery  at  Bogota    235  23  1883-1885 

For  agent  to  states  of  the  Congo  Association;  duties  .       235  23  1883-1885 

For  fees,  etc.,  in  extradition  cases 235  23  1883-1885 

For  diplomatic  officers  228,  322  23  1883-1885 

For  consular   officers    229,  324,  330  23  1883-1885 

For  contingent  expenses  at  legations   234,  324  23  1883-1885 

For  actual  expenses,  transportation  of  prisoners  ....234,324  23  1883-1885 
For  loss  by  exchange  in  remittance  of  money  .  .  .235,  324,  330  23  1883-1885 
To  enable  Secretary  of  State  to  comply  with  require- 
ments of  act  regulating  fees,  etc.,   in  extradi- 
tion cases   235, 324  23  1883-1885 

For  rent  of  legation  buildings,  China   234,  324  23  1883-1885 

For  repairing  legation  buildings,  Tangier 324  23  1883-1885 

For  Cape  Spartel  and  Tangier  light 235,  324  23  1883-1885 

For  printing  and  distributing  publications  by  Depart- 
ment of  State ;  proviso   235,  324  23  1883-1885 

For  International  Bureau  of  Weights  and  Measures  .235,324  23  1883-1885 
For  expenses  of  transportation  of  remains  of  ministers 

and  consuls  dying  abroad   235,324  23  1883-1885 


691 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULAR  AND  DIPLOMATIC  APPROPRIATIONS— Co n^inwed 

Page.  Vol.         Year. 
For  contingent  expenses  at  consulates  and  commercial 

agencies  234, 330     23     1883-1885 

For  a  boat  and  crew  at  Osaka  and  Hiogo 330     23     1883-1885 

For  launch  at  Constantinople    330     23     1883-1885 

For   interpreters,   etc 233,  330     23     1883-1885 

For   rent  of  prisons,  etc 234,330     23  1883-1885 

For  relief  of  American  seamen  in  foreign  countries.  .234,330     23  1883-1885 

For  hospital  at  Panama  234,  330     23  1883-1885 

For  expenses  of  acknowledgments  for  rescuing  seamen 

and  citizens  from  shipwreck    234,330     23  1883-1885 

For  allowances  to  widows,  etc.,  of  deceased  officers  .  .234,331     23  1883-1885 

For  search  for  evidence  as  to  French  spoliation  claims       331     23  1883-1885 
To  enable  the  President  of  the  United  States  to  meet 

unforseen    emergencies    and    extend    commercial 

interest    331     23  1883-1885 

CONSULAR  AND  DIPLOMATIC  EXPENSES 

Appropriations  for   (see  Appropriations)    ...27,159,310,402     11  1855-1859 

General  appropriation  for  the  fiscal  year  1859-60 402     11  1855-1859 

Envoys,  ministers,  and  commissioners    402     11  1855-1859 

Only  envoys,  etc.  to  the  specified  places  to  re- 
ceive pay  during  the  fiscal  year   402     11  1855-1859 

This  not  to  apply  to  certain  disbursements  .402,403     11  1855-1859 

Secretaries  of  legation,  etc 403     11  1855-1859 

Barbary   powers    403     11  1855-1859 

Belief  of  American  seamen    403     11  1855-1859 

Acknowledgments  for  help  in  rescuing  from  ship- 
wreck           403     11  1855-1859 

Office  rent  of  consuls  and  loss  by  exchange 403     11  1855-1859 

Minister  resident  at  Japan  403     11  1855-1859 

Consuls-general  and  consuls   403     11  1855-1859 

Commercial  agents  and  interpreters    403     11  1855-1859 

Boundary  line  commission  between  Great  Britain 

and  Washington  territory   403,  404     11  1855-1859 

Commissioner  under  reciprocity  treaty  with  Great 

Britain    404     11  1855-1859 

Suppression  of  the  slave  trade 404     11  1855-1859 

Salary  of  consul-general  for  British  North  Amer- 
ica           404     11  1855-1859 

Fees  over  certain  amounts  to  be  accounted  for       404     11  1855-1859 

Fees  for  certifying  certain  invoices   404     11  1855-1859 

Such  certificates  not  required  in  certain  cases      404     11  1855-1859 

General  appropriation  for  1860-61   19,  21     12  1859-1863 

For  1861-62    170, 336     12  1859-1863 

For    1862-63     335     12  1859-1863 

For    1863-64    638     12  1859-1863 

Envoys,  ministers,  and  commissioners  19,  20,  170,  335,  638     12  1859-1863 

Secretaries  of  legation,   etc 20,170,335,638     12  1859-1863 

Contingent    expenses    20,  170,  335,  638     12  1859-1863 


CONSOLIDATED  INDEX  TO  STATUTES 
CONSULAR  AND  DIPLOMATIC  EXPEJfSES— Continued 

General  Appropriation  for — Continued 

Page.  Vol 

Barbary    powers    20,  171,  335,  638 

Consulates   in   Turkey    20,  171,  335,  638 

American  seamen   abroad    20,  171,  335,  638 

Office    rent    of    consuls-general    20,171,335,638 

Salaries  of,  and  of  consuls 20,  21,  171,  335,  639 

Interpreters   in   China    20,  171,  336,  639 

Blank  books,  stationery,  flags,  etc 638 

Boundary  line  commission  between  Great  Britain 

and  Washington   territory    20, 21 

Suppression  of  slave  trade    21,  639 

Bringing  home  persons  charged  with  crime 

21, 171,  337,  639 

Prison  ship  in  China   21 

Marshal  at  consular  court  in  Canton   21 

Commissioner  to  China  and  consuls 21 

Prisons  in  China,  Japan,  Siam,  and  Turkey 

21, 171,  336,  639 

Marshals  at  consular  courts  in  China,  etc 

21, 171,  336,  639 

Office  of  consul-general  at  Simoda  abolished 171 

Salaries   of   consuls  at   Kanagawa  and   Nagasaki 

established    171 

Appropriation  to  enable  the  Secretary  of  State  to 
prepare,  etc.,   authentic  copies   of   the   settlement 
of  boundaries  of  certain  states,   and  maps  and 

charts  relating  thereto    171 

For  bringing  from   Batavia  seamen   of   ship 

Staghound     172 

Salaries  of  consuls  at  Bremen,  Newcastle-on-Tyne, 
Pictou,  Nova  Scotia,  Port  Mahon,  and  Swatow 

established    336 

Consular  officers,  whose  salaries  exceed  $1,000  not 

to   engage  in  mercantile  business    336 

Their  consulates  to  be  in  list  of  salaried  con- 
sulates          336 

Consuls    not    to    be    appointed,    except    to    places 

named  in  the  act   336 

Nor  their  compensation  be  raised   336 

Pay  and  increased  salaries  to  sundry  consuls  ....        336 
For  bringing  from  Sidney  seamen  of  ship  Junior, 
charged  with  mutiny,  etc.,  and  guard  and  wit- 
nesses            337 

Salary  of  consul  at  Guayamas  established 639 

Amount    due   "William   L.    Baker   to    be   paid   his 

widow     639 

Salaries  of  commissioners,  etc.,  to  Haiti  and  Li- 
beria           639 


693 


12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

12 

1859-1863 

CONSOLIDATED  INDEX  TO  STATUTES 


CONSULAR  AND  DIPLOMATIC  EXPENSES— Cowimwed 

General  Appropriation — Continued 

Page.  Vol.         Year. 
Expenses  under  treaty  with  Great  Britain  for  the 

suppression  of  the  slave  trade  639     12     1859-1863 

Appropriation  for  the  years  ending  June  30,  1865,  and 

June   30,    1866    137,  422-424 

Salaries  of  envoys,  ministers,  and  commissioners.  137,  422 

Secretaries   of    legations,   etc 137,  422 

Of  interpreters  in  China,  Turkey,  and  Japan 

137,  139,  422,  423 

Contingent    expenses    137,  422 

Barbary  powers,  intercourse  with   138,  422 

Consulates  in  Turkish  dominions    138,422 

Relief  and  protection  of  American  seamen 138,  422 

Cemetery    at    Constantinople    138 

Rewards  to  masters,  etc.,  for  rescuing  citizens  of 

the  United  States  from  shipwreck   138,  422 

Blank  books,  stationery,  etc 138,  422 

Salaries  and  office  rent  of  certain  consuls-general, 

consuls,  and  commercial  agents   138,  422 

Salaries  of  consuls  at  certain  places  established  .  .       139 

Bringing  home  persons  charged  with  crime 139,  424 

Marshals  of  consular  courts   .  .  ^ 139,  424 

Prisons  for  American  com-icts    139,  424 

Commissioners   and   consuls-general   to    Haiti   and 

Liberia    139,  424 

Suppression  of  African  slave  trade 139,  424 

Consular  clerks  may  be  appointed   139 

Their  age,  duties,  and  pay   139, 140 

To  be  examined  as  to  fitness   140 

Not  to  be  removed  but  for  cause  140 

Fee  for  certifying  invoices  by  consul-general  of 
British  North  American  provinces  and  subordi- 
nates     

Certificates  of  growth  and  production  not  required 

in   certain   cases    

Office  of  commercial  agent  at  Hakodate  may  be 

changed  to  that  of  consul  

Expenses  under  act  to  encourage  immigration   .  . . 

Under    neutrality    act    424 

Of  commission  to  run  and  mark  boundary 
line  between  the  United  States  and  British 
possessions  bounding  on  Washington  terri 

tory    

Appropriations  for  the   years  ending  June  30,    1867, 

and   June  30,    1868    224-226, 412-415     1 

Envoys,  ministers,  and  commissioners    224,412     1 

Secretaries  and  assistant  secretaries  of  legation  .  224,  413     1 

Interjjreters    224, 413     1 

Contingent    expenses    224, 413     1 


13 
13 
13 

13 
13 
13 
13 
12 
13 

13 
13 

13 
13 
13 
13 
13 

13 
13 
13 
13 
13 
13 


140     13 


140     13 


140 
424 


1863-1865 
1863-1865 
1863-1865 

1863-1865 
1863-1865 
1863-1865 
1863-1865 
1863-1865 
1863-1865 

1863-1865 
1863-1865 

1863-1865 
1863-1865 
1863-1865 
1863-1865 
1863-1865 

1863-1865 
1863-1865 
1863-1865 
1863-1865 
1863-1865 
18631865 


1863-1865 

1863-1865 

1863-1865 
1863-1865 
1863-1865 


424     13     1863-1865 


1865-1867 
1865-1867 
1865-1867 
1865-1867 
1865-1867 


694 


CONSOLIDATED  LNDEX  TO  STATUTES 
CONSULAR  AND  DIPLOMATIC  EXPENSES— Cow^mwed 

Appropriation  for — Continued 

Page.  Vol.         Year. 

Intercourse  with  Barbary  powers 224,  413     14     1865-1867 

Consulates  in  tlie  Turkish  dominions   224,  413     14     1865-1867 

American  seamen,  relief  and  protection  of   224,413     14     1865-1867 

Rescuing  seamen  from  shipwreck 224,  413     14     1865-1867 

Blank  books,  stationery,  postages,  etc 224,  413     14     1865-1867 

Office  rents  of  consuls,  etc.,  who  can  not  trade  .  .224,  413     14     1865-1867 
Consuls-general,    consuls,    commercial   agents,    and 

consular    clerks    224,225,413,414     14     1865-1867 

Pay  of  certain  consuls  established 225,  414     14     1865-1867 

No  money  to  be  paid  to  minister  resident  at  Por- 
tugal     225,413     14     1865-1867 

This  provision   to  continue  in  force  until  re- 
pealed  by   Congress    413     14     1865-1867 

No  money  to  be  paid  for  the  support  of  an  Amer- 
ican legation  at  Rome   413     14     1865-1867 

Interpreters  to  consulates  and  consular  courts  ..225,414     14     1865-1867 

Bringing  home  persons  charged  with  crime 225,  414     14     1865-1867 

Marshals  in  consular  courts    225,414     14     1865-1867 

Rent  of  prisons  for  American  convicts   225,414     14     1865-1867 

Commissioners,  etc.,  to  Haiti,  Liberia,  and  Dom- 
inica    225, 414     14     1865-1867 

Title  of,  hereafter  to  be  minister  resident  and 

consul-general,  but  no  increase  of  salary  .  .        226     14     1865-1867 

Suppression  of  slave  trade   226,  415     14     1865-1867 

Immigration   226     14     1865-1867 

Commissioner  on  claims  of  Hudson  Bay,  etc.,  Agri- 
cultural Company    226     14     1865-1867 

Neutrality  act   226, 415     14     1865-1867 

Boundary  line  commissions   226,  415     14     1865-1867 

Capitalization  of  Scheldt  dues,  second  installment 

226, 415  14  1865-1867 
Cemetery  fences  and  sexton's  house  in  Mexico  ..  226  14  1865-1867 
Appointment,  etc.,  of  Second  Assistant  Secretary 

of  State,  and  of  examiner  of  claims 226     14     1865-1867 

Their   salaries    226     14     1865-1867 

Fees  collected  by  consuls  or  commercial  agents  or 
their  deputies,  to  be  accounted  for  to  the  Sec- 
retary of  the  Treasury    226     14     1865-1867 

Excess  over  $2,500  a  year  above   office   rent 
and  clerk  hire,  to  be  paid  to  Secretary  of 

Treasury    226     14     1865-1867 

Salaries  of  envoys  extraordinary  and  ministers 
plenipotentiary  hereafter  appointed,  when  to  be 

only  those  of  ministers  resident   226     14     1865-1867 

No  money  appropriated  by  this  act  to  be  applied 
to  the  payment  of  any  doplimatic  representa- 
tive, consul,  or  commercial  agent,  not  a  citizen 
of  the  United  States,  native,  or  duly  natural- 
ized          414     14     1865-1867 

695 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULAR  AND  DIPLOMATIC  EXPENSES— ConhnwecZ 

Page.  Vol.  Year. 
Appropriations    for,    for    the   years,    ending    June    30, 

1869,   and  June  30,   1870    56, 319-322  15  1867-1869 

Envoys,  ministers,  and  commissioners 56,  319  15  1867-1869 

Additional    salary    of    minister    resident    to    the 
Argentine  Republic   and  to   Uruguay,  when  to 

commence,  and  to  continue  how  long   319  15  1867-1869 

Secretaries  of  legation  and  assistants   56,  319  15  1867-1869 

Interpreters  to   legations,  etc.,   to   Turkey,   China, 

and  Japan    56,  58,  319,  321  16  1867-1869 

At  Bangkok,  Siam   322  15  1867-1869 

Contingent  expenses  of  foreign  intercourse   56,319  15  1867-1869 

For  what  only  to  be  expended 56  15  1867-1869 

Consulates  in  the  Turkish  dominions  56,  319  15  1867-1869 

EeUef,  etc.,  of  American  seamen  in  foreign  coun- 
tries     56, 319  15  1867-1869 

Eescuing  seamen  from  shipwreck   56,  319  15  1867-1869 

Blank  books,  stationery,  etc 56,  319  15  1867-1869 

Office  rent  of  consuls,  etc.,  not  allowed  to  trade, 

and   for   exchange    56, 319  15  1867-1869 

Salaries    of    consuls-general,    consuls,    commercial 

agents,    etc 57,319,320  15  1867-1869 

Salary  of  consulate  Guaymas  established 57  15  1867-1869 

Moneys  in  excess  of  $1,000   received  by  consuls, 
etc.  from  vice-consuls,  etc.  to  be  paid  into  the 

Treasury    57  15  1867-1869 

Expenses  of  vice-consulates  not  to  exceed  $500  a 

year    58  15  1867-1869 

Salary  of  consuls  whose  present  pay  is  not  over 
$1,500,  and  where  fees  paid  into  the  Treasury 

are  over  $3,000,  established  at  $2,000  a  year  . .         58  15  1867-1869 
Allowance  for  rent  of  the  consul's  offices  at  Paris       319  15  1867-1869 
Consulates  at  Paris  and  London  to  be  called  con- 
sulates-general            320  15  1867-1869 

Appointment  and  salary  of  consul  at  Barmen  ....        320  15  1867-1869 

Birmingham    320  15  1867-1869 

Tunstall     320  15  1867-1869 

Winnipeg,  Selkirk  Settlement 320  15  1867-1869 

Salary  of  consul  established  at  Bangkok 322  15  1867-1869 

Buenos    Ayres    320  15  1867-1869 

Hakodate     320  15  1867-1869 

Valencia    320  15  1867-1869 

Bringing  home  persons  charged  with  crime 58,  321  15  1867-1869 

Marshals    for    courts    58,321  15  1867-1869 

Salaries  of  consuls  at  Osaka  and  Jeddo,  at  Japan         58  15  1867-1869 
Rent   of   prisons   for   American   convicts  in   China 

Japan,  Siam,  and  Turkey  58,  321  15  1867-1869 

For  restoration  of  the  Protestant  American  cem- 
etery  at   Acapulco,   Mexico    321  16  1867-1869 


696 


CONSOLIDATED  INDEX  TO  STATUTES 
CONSULAR  AND  DIPLOMATIC  EXPENSES— Conimwed 

Appropriations  for — Continued 

Page.  Vol.        Tear. 

Ministers,  etc.,  to  Haiti  and  Liberia   58,  321     16     1867-1869 

Suppression  of  the  slave  trade   58,  321     15     1867-1869 

Salaries  of  judges  to  be  paid  only  on  condition, 

etc 321     15     1867-1869 

Bequest  to  be  made  for  abrogation  of  that  part  of 
treaty    requiring    the    keeping    up    of    mixed 

courts     321     15     1867-1869 

Salaries   of   United  States   oflScers  connected 

with  such  courts  then  to  cease 321     15     1867-1869 

Expenses  under  neutrality  act   58,  321     15     1867-1869 

Fourth  installment  of  Scheldt  dues 58     15     1867-1869 

Fifth  installment  of  Scheldt  dues   321     15     1867-1869 

Officers  of  Army  or  Navy  holding  any  diplomatic 

office,  to  be  considered  as  having  resigned,  etc.         58     15     1867-1869 
Diplomatic    and    consular    officers    not    to    receive 

salaries  vphile  absent  from  post,  if,  etc 58     15     1867-1869 

Act  to  encourage  immigration  repealed 58     15     1867-1869 

Diplomatic  and  consular  officers  not  to  receive 
salaries   while   absent   from   post   beyond   sixty 

days  in  any  one  year  321     15     1867-1869 

Additional  allowance  for  time  in  going  and  re- 
turning           321     15     1867-1869 

Eepeal  of  former  law   321     15     1867-1869 

Fees  for  verifications  of  invoices  by  consular  offi- 
cers to  cover  what   321     15     1867-1869 

Penalty  upon  consular  officers  for  illegal  charges       321     15     1867-1869 
Dismissal  from  office,  fine,  imprisonment  ....        321     15     1867-1869 
Consuls,  etc.,  in  Canada  not  to  be  allowed  tonnage 

fees  on  certain  vessels    322     15     1867-1869 

Tonnage  or  clearance  fees  not  to  be  charged  ves- 
sels making  regular  daily  trips  between  the 
United   States    and    Canada,    except   upon    first 

clearing  in  each  year  322     15     1867-1869 

Examinations  to  be  made  in  the  accounts  of  con- 
sular officers  and  the  business  of  their  offices  .  .        322     15     1867-1869 
Agents  to  examine  accounts,  etc.,  of  consuls,  etc. 

to   be   appointed    322     15     1867-1869 

Their  power,  pay,  etc 322     15     1867-1869 

Names,  etc.,  of  agents  to  be  communicated  to 

Congress  at  each  December  session 322     15     1867-1869 

Consular  officers  willfully  neglecting  to  render  true 
accounts  of  the  business  of  their  office,  and  of 
moneys  received  by  them  for  the  United  States, 
or  neglecting  to  pay  over  money  due  the  United 

States,  to  be  deemed  guilty  of  embezzlement  . .       322     15     1867-1869 
On    conviction   to   be   punished   by   imprison- 
ment, fine,  and  disqualification  for  office  . .       322     15     1867-1869 


697 


CONSOLIDATED  INDEX  TO  STATUTES 
CONSULAR  AND  DIPLOMATIC  EXPENSES— Cow^inttecZ 

Appropriations  for — Continued 

Page.  Vol.  Year. 
Consuls-general,  or  consuls,  to  exercise  the  duties 

of  only  one  such  office  322  15  1867-1869 

Limit  to  allowance  to  vice-consulates  or  consular 

agencies  for  the  expenses  thereof   322  16  1867-1869 

Expenses  of  prison  and  keepers  at  Bangkok  not 

to  exceed,  etc 322  15  1867-1869 

Salary  of  consul  and  of  interpreter  at  Bangkok  .  .        322  15  1867-1869 

No  salary  to  be  allowed  to  marshal  at  Bangkok  .  .        322  15  1867-1869 
Appropriations   for,   for  years  ending   June   30,    1871, 

and  June   30,    1872    218-221,417-419  16  1869-1871 

Envoys,  ministers,   and  commissioners   219,417  16  1869-1871 

Secretaries  of  legation  and  assistants   219,  417  16  1869-1871 

Ministers  to   Haiti   and  Liberia    219,417  16  1869-1871 

Interpreters   to   legations,   etc.,   to    Turkey,   Siam, 

China,    and   Japan    219,220,417,418  16  1869-1871 

Contingent  expenses  of  foreign  intercourse    ....219,417  16  1869-1871 

Private  amanuensis  for  Robert  C.  Sehenck   417  16  1869-1871 

Salaries  of  consuls-general,  consuls,  and  commer- 
cial   agents     219,  220,  417,  418  16  1869-1871 

Consulates  in  the  Turkish  dominions   220,  418  16  1869-1871 

Rent  of  prisons  for  American  convicts  in  Japan, 

China,  Siam,  and  Turkey   220,  418  16  1869-1871 

Blank  books,  stationery,  etc 220  16  1869-1871 

Office  rent  of  consuls,   etc.,   not  allowed  to  trade 

and  exchange   220  16  1869-1871 

Commercial   agencies    220, 418  16  1869-1871 

Marshals  for  consular  courts   220,  418  16  1869-1871 

Neutrality    act    220, 419  16  1869-1871 

Bringing  home  persons  charged  with  crime 220,  419  16  1869-1871 

Relief  and  protection  of  American  seamen 220,  419  16  1869-1871 

Services  in  rescuing  American  seamen   220,221,419  16  1869-1871 

Sixth  installment  of  Scheldt  dues    221  16  1869-1871 

Seventh  installment  of  the  Scheldt  dues 419  16  1869-1871 

Second   installment   of   the   award  to   the   Hudson 

Bay  and  Puget  Sound  Agricultural  Companies  .       419  16  1869-1871 
Expenses  of  defending  claims  under  the  conven- 
tion  with   Mexico    221  16  1869-1871 

Accounts  of  consular  officers,  and  their  business  to 

be    examined    221  16  1869-1871 

Agents  to  examine,  and  their  powers 221  16  1869-1871 

Their   compensation    221  16  1869-1871 

Names  of  agents,  etc.,  to  be  communicated  to  Con- 
gress at  commencement  of  every  December  ses- 
sion            221  16  1869-1871 

Salary  of  agents    221  16  1869-1871 

Appropriations   for,   for  years  ending  June   30,    1873, 

and  June  30,  1874   142-145,  471-474  17  1871-1873 

Envoys,  ministers,  and  commissioners    142,471,472  17  1871-1873 

698 


consolidatp:d  index  to  statutes 

CONSULAR  AND  DIPLOMATIC  EXPENSES— Cow^wmeti 

Appropriations  for — Continued 

Page.  Vol.         Year. 

Secretaries  of  legation  and  assiBtants   142,  471,  472  17  1871-1873 

Assistant  secretaries  of  legation  to  be  called  sec- 
ond  secretaries    472  17  1871-1873 

Ministers  to  Haiti  and  Liberia 142,  471  17  1871-1873 

Interpreters  to  legations,   etc.,  to   Turkey,   Siam, 

China,  and  Japan    142-144,  472,  473  17  1871-1873 

Salary  may  be  paid  to  an  interpreter  in  Turkey, 

though  not  a  citizen  of  the  United  States 472  17  1871-1873 

Consul-general  at   Constantinople  to  be  secretary 

of  legation  in  Turkey 472  17  1871-1873 

To  be  paid  only  as  consul-general 472  17  1871-1873 

Contingent  expenses  of  foreign  intercourse    ....143,472  17  1871-1873 

Private  amanuensis  for  Robert  C.  Schenck 142,472  17  1871-1873 

Salaries  of  consuls-general,  consuls,  and  commer- 
cial   agents     143,  144,  472,  473  17  1871-1873 

Salary  of  consul  at  Vienna  established  at  $5,000  .        473  17  1871-1873 
Names  of  consular  officers,  not  citizens,  to  whom 

salaries  are  paid,  to  be  reported  each  year  ....        473  17  1871-1873 

Increase  of  allowance  to  consular  officers  for  rent       473  17  1871-1873 

R.  S.  Kendall,  late  consul  to  Strassburg 473  17  1871-1873 

Consulates  in  the  Turkish  dominions 144,  473  17  1871-1873 

Rent  of  prisons  for  American  convicts  in  Japan, 

China,  Siam,  and  Turkey   144, 473  17  1871-1873 

Blank  books,  stationery,  etc 144,  473  17  1871-1873 

Commercial   agencies    144, 473  17  1871-1873 

Marshals   for  consular   courts    144, 473  17  1871-1873 

Seals  to  consular  agents  473  17  1871-1873 

Neutrality    act    144, 474  17  1871-1873 

Bringing  home  persons  charged  with  crime 144,  474  17  1871-1873 

Relief  and  protection  of  American  seamen 144,474  17  1871-1873 

Services  in  rescuing  American  seamen   144,  474  17  1871-1873 

Ninth  installment   of   Scheldt   dues    145  17  1871-1873 

Last  installment  of  Scheldt  dues   474  17  1871-1873 

After  June  30,  1873,  only  one  minister  resident  to 
be  accredited  to  Guatemala,  Costa  Rica,  Hon- 
duras, Salvador,  and  Nicaragua 142  17  1871-1873 

The  President  to  select  the  place  of  residence 

of  the  minister    142  17  1871-1873 

Pay  and  allowances  of  the  minister  resident  ac- 
credited to  the  five  Central  American  states  to 

be  $10,000    471  17  1871-1873 

Of   the   minister   to    Uruguay,    accredited    to 

Paraguay    471  17  1871-1873 

Interpreter  at  Constantinople  to  perform  duties  of 

secretary  of  legation    143  17  1871-1873 

Office  of  secretary  of  legation  to  Japan,  authorized      143  17  1871-1873 


699 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULAR  AND  DIPLOMATIC  EXPENSES— Coneim^ecZ 

AppropriationB  for — Continued 

Page.  Vol.        Year. 

No  pay  or  allowance  to  be  made  to  any  diplomatic 
officer  after  his  official  functions  terminate,  ex- 
cept,   etc 143     17     1871-1873 

Appropriation  for  agents  to  examine  consular  ac- 
counts to  cease  after  June  30,  1873   143     17     1871-1873 

"Public  documents"  not  to  be  supplied  to  lega- 
tions, except,  etc 144     17     1871-1873 

Compensation    of    chief    clerk   of    Department    of 

State   established    145     17     1871-1873 

Cape  Spartel  light    474     17     1871-1873 

British    Claims   Commission    474     17     1871-1873 

Spanish  Claims  Commission    474     17     1871-1873 

Mexican  Claims  Commission 474     17     1871-1873 

Payment  to  the  widow,  etc.  of  any  diplomatic,  etc., 
officer  dying  in  a  foreign  country,  while  in  the 

discharge  of  his  duty    474     17     1871-1873 

Appropriation  therefor    474     17     1871-1873 

Consular  officers  not  to  grant  certificates  for  cer- 
tain goods,  etc.,  shipped  from  countries  adjacent 

to  the  United  States   474     17     1871-1873 

Appropriation  for,  for  years  ending  June  30,  1875  and 

1876     66-71,321-328     18     1873-1875 

Envoys  extraordinary  and  ministers  plenipoten- 
tiary     66,321     18     1873-1875 

Ministers    resident    66,67,321     18     1873-1875 

Accredited  to   Guatemala,   etc.,   where   to   re- 
side     66, 321     18     1873-1875 

Ministers  to  Hai  .  and  Liberia  67,  321     18     1873-1875 

Charge  d'affaires  and  diplomatic  officers  abroad  .67,321     18     1873-1875 

Secretaries  of  legation  and  second  secretaries  ...67,321     18     1873-1875 
Allowance  to  secretary,  etc.,  at  Paris 67     18     1873-1875 

Interpreters   to  legations   in   China,    Turkey,    and 

Japan     67, 321     18     1873-1875 

Private  amanuensis  for  Robert  C.  Schenek  67,  321     18     1873-1875 

Contingent  expenses  of  foreign  intercourse 67,  322     18     1873-1875 

Allowance  to  consuls,  etc.,  for  clerks    327     18     1873-1875 

Consuls-general,    consuls,    vice-consuls,    commercial 

agents,   and   consular  clerks    67,322-326     18     1873-1875 

Compensation  notwithstanding,  etc 70     18     1873-1875 

For  loss  by  exchange    70,327     18     1873-1875 

Repayment  to  Brazil  of  money  erroneously  claimed 

by  the  United  States 70     18     1873-187S 

Interpreters   to   consulates  in   China,   Japan,   and 

Siam     70,326     18     1873-1875 

Marshals  for  consular  courts   70,  327     18     1873-1875 

Miscellaneous   expenses    70,327     18     1873-1875 

Interpreters,  guards,  etc.,  to  consulates  in  Turkish 

dominionfl    70, 327     18     1873-1875 

700 


CONSOLIDATED  INDEX  TO  STATUTES 
CONSULAR  AND  DIPLOMATIC  EXPENSES— Cow^i/iwed 

Appropriations  for — Continued 

Page.  Vol.  Year. 

Consular  officers,  not  citizens  of  the  United  States  70,  327  18  1873-1875 

Spanish    Claims    Commission    71, 327  18  1873-1875 

Mexican  Claims  Commission   71,  327  18  1873-1875 

Appropriation  for  survey  of  boundary  between  United 

States  and  British  possessions   71  18  1873-1875 

Eent    of    prison,    etc.,    for    American    convicts    in 

China,  Japan,  Siam,  and  Turkey 71,  327  18  1873-1875 

Bringing  home  persons  charged  with  crime   71,327  18  1873-1875 

Relief  and  protection  of  American  seamen   71,327  18  1873-1875 

Services  in  rescuing  American  citizens   71,327  18  1873-1875 

Expenses  of  executing  neutrality  act   71,  327  18  1873-1875 

Cape  Spartel  light    71,  327  18  1873-1875 

Widows  and  heirs  of  deceased  diplomatic  and  con- 
sular  officers    71,327  18  1873-1875 

Rent  of  court-house  and  jail  in  Japan 71,  328  18  1873-1875 

Awards  to  British  subjects  under  treaty  of  Wash- 
ington             71  18  1873-1875 

CONSULAR  AND  DIPLOMATIC  OFFICERS 

Appropriation  to  pay  increase  of  expenses  of,  in  Paris, 

caused  by  a  state  of  war 495     16     1869-1871 

In  Madrid,  Berlin,  and  London   495     16     1869-1871 

In  Paris,  in  protecting  the  subjects  of  the  North 

German  Confederation  in  France 495     16     1869-1871 

CONSULAR  FEES 

Reduced  for  vessels  running  regularly  to    )r   '  '.tween 

foreign  ports   315  12  1859-1863 

Not  more  than  four  trips  a  year  to  be  paid  for  .  .  315  12  1859-1863 
Act  requiring  certain,  to  be  accounted  for,  to  take  ef- 
fect as  of,  January  1,  1867   51  16  1869-1871 

Certain,  to  be  refunded  out  of  consular  receipts 51  16  1869-1871 

President  requested  to  re\-ise  tariff  of    273  20  1877-1879 

For  services  to  American  seamen  prohibited   56  23  1883-1885 

CONSULAR  JURISDICTION 

Over  controversies  between  officers  and  crews  of  cer- 
tain foreign  vessels    121,  122     13     1863-1865 

CONSULAR  MARSHALS 

Appropriation    for    254,  704     25     1887-1889 

CONSULAR  AND  DIPLOMATIC  SERVICE 

Appropriations  for  salaries,  etc.,  of 171,  233  19  1875-1877 

For  packing  laws,  etc.,  for   148, 299  19  1875-1877 

Employment  of  Frederick  Hinkel  in,  of  North  German 
Empire  to  be  accepted  as  renunciation  of  nat- 
uralization in  United  States    411  19  1875-1877 

Appropriations    for    92,183,268  20  1877-1879 

For  deficiencies  in    115  20  1877-1879 

Salaries  established    98, 274  20  1877-1879 

701 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULAR  AND  DIPLOMATIC  SERVICE— Con iinwed 

Page.  Vol.  Tear. 

Appropriations    for    134, 339  21  1879-1881 

For  deficiencies  in    427  21  1879-1881 

For  packing  laws,  etc.,  for   23,  216,  391  21  1879-1881 

Appropriation  for  the   128,  424  22  1881-1883 

Deficiency  appropriation  for  the   275,  594  22  1881-1883 

Appropriations  for  the    227, 322  23  1883-1885 

Appropriation    for    227,322  23  1883-1885 

For  salaries  of    260, 470  23  1883-1885 

Deficiency   appropriation  for    254  23  1883-1885 

Appropriation  for  salaries    110,  481  24  1885-1887 

Deficiency  appropriation  for  salaries   298  24  1885-1887 

(See  Diplomatic  and  Consular  Service)    25  1887-1889 

(See  Diplomatic  and  Consular  Service) 27  1891-1893 

Appropriation   for  salaries,   consuls-general    228,500  27  1891-1893 

For  salaries  consuls,  vice-consuls,  and  commercial 

agents    228, 500  27  1891-1893 

For   clerk   hire    232,504  27  1891-1893 

For    contingent   expenses    234, 506  27  1891-1893 

(See  Diplomatic  and  Consular  Service)    28  1893-1895 

Appropriation  for  salaries,  consuls-general 145,819  28  1893-1895 

For  consuls,  vice-consuls,  and  commercial  agents.  145,  819  28  1893-1895 

For    clerk    hire    149, 823  28  1893-1895 

For  interpreters,  marshals,  etc 150,  824  28  1893-1895 

For    contingent   expenses    151, 825  28  1893-1895 

Return  of  fees,  to  be  prescribed  by  Comptroller 206  28  1893-1895 

(See  Diplomatic  and  Consular  Service)    29  1895-1897 

Appropriation    for    salaries    32,584  29  1895-1897 

For  inspection  of  consulates   36,  587  29  1895-1897 

For   consular   clerks    36,588  29  1895-1897 

For   clerks   at   consulates    36,588  29  1895-1897 

For  interpreters,  marshals,  etc 37,  589  29  1895-1897 

For  contingent  expenses   38,  590  29  1895-1897 

Deficiency  appropriation  for  contingent  expenses. 268, 309,  312  29  1895-1897 

(8««  Diplomatic  and  Consular  Service)    30  1897-1899 

Appropriation  for  salaries 267,  827  30  1897-1899 

For  consular   clerks    271, 831  30  1897-1899 

For  inspection  of  consulates   270  30  1897-1899 

For  clerks  at  consulates   271,  831  30  1897-1899 

Appropriation  for  interpreters,  marshals,  etc 272,832  30  1897-1899 

For    contingent    expenses    273,833  30  1897-1899 

For  consular  oflicers  not  citizens 271,  831  30  1897-1899 

For  loss  by  exchange    273,  833  30  1897-1899 

Deficiency  appropriation  for  salaries   

106,  145,  709,  711,  714,  1247, 1249  30  1897-1899 

For    contingent    expenses    106,  145,  150,  711  30  1897-1899 

For  loss  by  exchange    1247  30  1897-1899 

Laws  amended   protecting  merchant  seamen   755  30  1897-1899 

Paties  of  consular  officers 757,  760,  761  30  J8974899 


708 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULAR  AND  DIPLOMATIC  SERVICE— Conhnwed 

Page.  Vol.  Year. 
To  collect  samples  foreign  merchandise  for  exhibit  at 

E3q>o8ition  American  Products,  etc.,  Philadelphia       768  30  1897-1899 

Bonds  of  consular  officers   770  30  1897-1899 

Approval  of,   form,  etc 770  30  1897-1899 

Of   vice-consular  officers    771  30  1897-1899 

Suit  on ;   service,  etc 771  30  1897-1899 

Embezzlement ;  penalty   771  30  1897-1899 

Appropriation  for  Vernona  E.  Pollock,  etc 1489  30  1897-1899 

(See  Diplomatic  and  Consular  Service)    31  1899-1901 

Appropriation  for  salaries    65, 887  31  1899-1901 

Deficiency  appropriation  for  salaries 319,  321,  1055,  1057  31  1899-1901 

Appropriation  for  repairs  to  buildings 80,  812  32  1901-1903 

For    salaries     81,813  32  1901-1903 

For  clerks  at  consulates   86,  818  32  1901-1903 

For  clerks  at  consulates  not  specified 86,  818  32  1901-1903 

Deficiency  appropriation  for  contingent  expenses   .... 

6,  32,  553,  587,  590,  1033,  1074  32  1901-1903 

For    salaries     32,553,587,590,1074  32  1901-1903 

CONSULAR  OFFICERS 

Meaning  of  term  ' '  consular  officer ' '  in  act  1856,  chap- 
ter  127    64  11  18.55-1859 

Whose  salaries  exceed  $1,000,  not  to  engage  in  mer- 
cantile business   336  12  1859-1863 

Their  consulates  to  be  in  list  of  salaried  consulates  .  .       336  12  1859-1863 

Duty  of,  as  to  verification  of  invoices 533  13  1863-1865 

To  follow  instructions   533  13  1863-1865 

Not  to   receive   salary   while   absent   from   posts   more 

than  sixty  days  in  any  one  year   321  15  1867-1869 

Time  of  going  to  and  returning  from  to  be  allow- 
ed in  addition   321  15  1867-1869 

Eepeal  of  former  law   321  16  1867-1869 

Fees  of,  for  verification  of  invoices  by,  to  cover  what  .       321  15  1867-1869 

Penalty  for  illegal  charges  321  15  1867-1869 

Dismissal  from  office,  fine,  imprisonment    .  .  .       321  15  1867-1869 
In  Canada,  not  to  be  allowed  tonnage  fees  for  certain 

vessels    322  15  1867-1869 

To    receive    foreign    moneys    for    official    fees    at 

what    rates     322  15  1867-1869 

Examination   to   be   made   into   accounts   of,   and   the 

business  of  their  offices  322  15  1867-1869 

Agents  to  be  appointed  therefor 322  15  1867-1869 

Their  powers,  duties,  pay   322  15  1867-1869 

Names   of   agents   and   their   reports   to   be   com- 
municated to   Congress    322  15  1867-1869 

Willfully  neglecting  to  render  true  accounts,  or  neglect- 
ing to  pay  over  moneys  due  the  United  States, 

to  constitute  embezzlement   322  15  1867-1869 

703 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULAR  OFFICERS— Continued 

Page.  Vol.        Year. 
Penalty,    fine,    imprisonment,    and    disqualification 

for   office    322     15     1867-1869 

Accounts  and  business  of,  to  be  examined 221     16     1869-1871 

Agents  to  examine  and  their  powers  221     16     1869-1871 

Compensation  of    221     16     1869-1871 

Names  of,  to  be  communicated  to  Congress 221     16     1869-1871 

Salary  of    221     16     1869-1871 

Appropriation   for   payment  of   salaries   to   those   not 

citizens    473     17     1871-1873 

Names,  etc.,  to  be  reported  each  year 473     17     1871-1873 

Increase  of  allowance  for  rent   473     17     1871-1873 

Not  to  grant  certificates  for  certain  goods,  etc.,  ship- 
ped   from    countries    adjacent    to    the    United 

States     474     17     1871-1873 

Payment  to  widow,  etc.  of,  djdng  abroad  in  the  dis- 
charge of  duty    474     17     1871-1873 

May  remit  the  three  months'  extra  wages,  when  a  sea- 
man is  discharged  in  a  foreign  port  for  miscon- 
duct, if,  etc 580     17     1871-1873 

To  pay  seamen's  wages  in  foreign  ports,  in  gold  or  its 

equivalent,  and  without  deduction 602     17     1871-1873 

Appropriation  for  salaries  of    67,  322,  414     18     1873-1875 

For  payment  of,  not  citizens   70,  327     18     1873-1875 

For  allowance  to  widows  or  heirs  of,  etc 71     18     1873-1875 

Deficiency  appropriation  for  salaries  of    133     18     1873-1875 

Transfer  in  accounts  of  State  Department  for  salaries 

of   405     18     1873-1875 

Not  salaried  bonds  of,  to  be  approved  by  Secretary  of 

State    67     18     1873-1875 

Regulation   of   allowance   of   time   for  making   transit 

between  posts  and  city  of  Washington 70     18     1873-1875 

Duty  of,  to  ascertain  whether  immigrant  to  United 
States  from  China,  Jajian,  etc.,  has  entered  into 
contract  for  service  for  lewd  and  immoral  pur- 
poses            477     18     1873-1875 

Revised  Statutes,  section   1676,  amended,  as  to  salary 

of  agent  and  consul-general  at  Cairo  483     18     1873-1875 

Consuls  at  Vladivostok,  Fayal,  and  Auckland  exempted 

from  disability  to  engage  in  business   486     18     1873-1875 

Appropriations  for  salaries  of   171,  233     19     1875-1877 

To   supply   deficiency   in,   for   amounts   due   E.   C. 

Sammis    363     19     1875-1877 

To  effect  a  transfer  in  settlement  of  accounts  for 

1872,  1873,  and  187.5,  for  salaries  of 42,  363     19     1875-1877 

For  1875  and  1876,  for  contingenies   363     19     1875-1877 

Certain,  to  be  notified  to  close  their  offices 175     19     1875-1877 

Judicial  functions  of,  in  P'gypt,  suspended  662     19     1875-1877 


704 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULAR  OTIIC-E^Sr— Continued 

Page.  Vol.         Year. 

Appropriations  for  salaries  of    92,97,268     20     1877-1879 

For    deficiencies    in    115, 421     20     1877-1879 

Eeports  by,  of  prices  current,  etc 98     20  1877-1879 

Concerning  contagious  diseases,  etc 38     20     1877-1879 

Of  imports,  exports,  etc 273     20     1877-1879 

Of  rates  of  wages 274     20     1877-1879 

Convention  with  Italy  concerning  rights,  etc.,  of 725     20  1877-1879 

Appropriations  for  salaries  of    134,  339     21  1879-1881 

To  certify  sanitary  history  of  vessels  departing  from 

port  where  contagious  disease  exists;  fees   ....  5     21  1879-1881 

In  Belgium,  rights,  privileges,  and  immunities  of  ....        776     21  1879-1881 

The  Netherlands    662     21  1879-1881 

Sanitary  reports  by   6     21  1879-1881 

Eegulations  to  be  furnished  to   6     21  1879-1881 

Not   citizens,   appropriation   for    139, 344     21  1879-1881 

Agreement  with  Italy  concerning  rights,  etc.  of 831     22  1881-1883 

Treaty  with  Madagascar,  concerning  rights,  etc.  of  .  .  .        957     22  1881-1883 

With  Servia  968     22  1881-1883 

Appropriation   for  fees   of,    for   services   rendered   to 

American  seamen    56     23  1883-1885 

For  salaries  of,  not  citizens 233,  330     23  1883-1885 

For  payment  to  widows  or  heirs  at  law  of,  dying 

abroad   234, 331  23  1883-1885 

Deficiency  appropriation  for  payment  to  certain 236,  447  23  1883-1885 

Deficiency  appropriation  for,  not  citizens   254,  260  23  1883-1885 

Duties  of,  relating  to  wages,  etc.,  of  American  seamen         54  23  1883-1885 
Settlement    of    accounts    of     certain,     contingent     ex- 
penses     236,237  23  1883-1885 

Settlement  of  accounts  of  certain,  authorized 447  23  1883-1885 

Agreement  with  Roumania  concerning  rights,  etc.  of  .  .        711  23  1883-1885 

Appropriation  for  salaries   110,  481  24  1885-1887 

For  allowance  to  heirs  of,  dying  abroad 110,  481  24  1885-1887 

For  bringing  home  remains  of 110,  481  24  1885-1887 

Deficiency  appropriation  for  salaries   257  24  1885-1887 

For  settling  accounts  of   258  24  1885-1887 

Appropriation  for  transporting  remains  of 249,  699  25  1887-1889 

For  paying  heirs  of,  dying  abroad 249,  699  25  1887-1889 

For  salaries    250, 699  25  1887-1889 

(See  Diplomatic  and  Consular  Appropriations) 26  1889-1891 

Appropriation  for  instruction  and  transit  pay 272,  1053  26  1889-1891 

Deficiency  appropriation  for  salaries   863  26  1889-1891 

(See  Diplomatic  and  Consular  Service)    27  1891-1893 

Appropriation  for  instruction  and  transit  pay 224,  497  27  1891-1893 

For  salaries    228, 500  27  1891-1893 

Deficiency  appropriation  for  salaries 282,309,314  27  1891-1893 

For  services  to  American  vessels 309  27  1891-1893 

(See  Diplomatic  and  Consular  Service) 28  1893-1895 

Appropriation  for  instruction  and  transit  pay 142,  816  28  1893-1895 

For  salaries    145, 819  28  1893-1895 

705 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULAR  OFFICERS— Cowimwed 

Tage.  Vol.  Year. 
Deficiency  appropriation  for  services  to  American  ves- 
sels             873  28  1893-1895 

Apjiropriation  for  instruction  and  transit  pay    29,580  29  1895-1897 

Appropriation  for  instruction  and  transit  pay   263,  824  30  1897-1899 

For  allowance  to  widows,  etc 265,  826  30  1897-1899 

For  bringing  home  remains   265,  826  30  1897-1899 

For,  not  citizens,  salaries   271,  831  30  1897-1899 

For  services  to  American  vessels    826  30  1897-1899 

Deficiency    appropriation    for   instruction    and    transit 

pay   711,  713, 1249  30  1897-1899 

For  salaries    711  30  1897-1899 

For  services  to  American  vessels 711,  714  30  1897-1899 

Spain  may  establish,  in  relinguished  territory   1761  30  1897-1899 

Appropriation  for  salaries  of,  not  citizens   69,  892  31  1899-1901 

For  bringing  home  remains   64,  886  31  1899-1901 

Appropriation  for  payment  to  heirs  of   79,  811  32  1901-1903 

For  bringing  home  remains  of,  dying  abroad  ...  .79,  811  32  1901-1903 
Deficiency  appropriation  for  services  to  American  ves- 
sels, etc 1074  32  1901-1903 

Duties  of,  in  respect  of  patent  applications 1226  32  1901-1903 

To  collect  statistics,  etc.,  for  Department  of  Commerce 

and  Labor;   reports    827  32  1901-1903 

To  execute  bond,  if  accepting  administration,  etc.  from 

foreign  state 546  32  1901-1903 

Suit  on,  in  case  of  breach  of  trust 546  32  1901-1903 

Failure  to  deliver  property,  etc.,  deemed  embezzlement       547  32  1901-1903 

Punishment     547  32  1901-1903 

CONSULAR  OFFICERS  NOT  CITIZENS 

Api.ropriations  for  salaries  of 174,  238  19  1875-1877 

Appropriation  for  pay  of  115,  485  24  1885-1887 

Deficiency   appropriation   for   salaries    259,302,303  24  1885-1887 

Appropriation    for    254,  703  25  1887-1889 

Deficiency    appropriation    for    5,  62, 565, 906  25  1887-1889 

Appropriation  for   280,  1060  26  1889-1891 

Deficiency  appropriation  for  salaries 505,  506,540,  863  26  1889-1891 

To  be  paid  from  amount  for  consulate  232,  504  27  1891-1893 

Deficiency  appropriation   for  salaries,    282,309,647  27  1891-1893 

Deficiency   appropriation   for   salaries    477  28  1893-1895 

To  be  paid   from  amount  for  consulate    149, 823  28  1893-1895 

To  be  i)aid  from  appropriation  for  office 36,  588  29  1895-1897 

To  bo  paid  from  salary  of  office  to  which  attached  .  ..86,818  32  1901-1903 

CONSULAR  PRISONERS 

Appropriation  for  prison  expenses  at  Bangkok 116,  486  24  1885-1887 

At  Shanghai    116, 486  24  1885-1887 

At  Kanagawa    116, 486  24  1885-1887 

Tn    Turkey    117,486  24  1885-1887 

For  keeping  and  feeding;  maximum  allowance  .  .116,486  24  1885-1887 

706 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULAR  PRISONERS— Cow^wwed 

Page.  Vol.  Year. 

Appropriation  for  prison  expenses  at  Bangkok 255,704  25  1887-1889 

At    Shanghai     255,704  25  1887-1889 

At  Kanagawa    255, 704  25  1887-1889 

In   Turkey    255, 704  25  1887-1889 

For  expenses    255, 704  25  1887-1889 

CONSULAR  PRISONS 

Appropriation  for  expenses    233, 506  27  1891-1893 

Appropriation  for  expenses    150, 824  28  1893-1895 

CONSULAR  PUPILS 

Appointment  of,  act  authorizing,  after  proof  of  fitness         55  11  1855-1859 

Pay  and  duties  of 55  11  1855-1859 

Law  authorizing,   repealed    160  11  1855-1859 

Provisions  concerning  leave  of  absence,  correspondence, 

etc.,   of    77  18  1873-1875 

CONSULAR  REGULATIONS 

Appropriation  for  revising  and  editing 274  20  1877-1879 

Appropriations  for  purchase  of  manuscript  of,  and  ed- 
iting and  printing  revise  of    239  21  1879-1881 

Appropriation   for   revising    117  24  1885-1887 

Appropriation   for   rewriting    103  28  1893-1895 

Printing  of,  for  1896,  directed;  distribution   700  29  1895-1897 

CONSULAR,  ETC.,  REPORTS 

Appropriation  for  printing 271,  391  21  1879-1881 

For    distribution    of;    proviso    271-391  21  1879-1881 

On  rates  of  wages,  etc 26  21  1879-1881 

Appropriation  for  publication,  etc.,  of   117,  487  24  1885-1887 

Appropriation  for  expenses  of  publication 255  25  1887-1889 

Appropriation   for   preparation,   etc 281,  1061  26  1889-1891 

Appropriation  for  publication,  etc 234,506  27  1891-1893 

Appropriation  for  preparation,  etc 150,825  28  1893-1895 

Printing   authorized;    distribution    616  28  1893-1895 

Edition  of  7,000  copies  authorized    959  28  1893-1895 

Appropriation   for   preparation,   etc 38,590  29  1895-1897 

Employees,  books,  etc 590  29  1895-1897 

For  clerks,  etc.,  publication  of   148  29  1895-1897 

Bureau   of   Statistics   changed   to   Bureau  of   Foreign 

Commerce    590  29  1895-1897 

Appropriation    for   preparation,    etc 272-833  30  1897-1899 

Deficiency  appropriation  for  preparation,  etc 107  30  1897-1899 

For  amounts  found  due  by  accounting  oflicers,  etc.       107  30  1897-1899 

For  reprint  of  certain   135  30  1897-1899 

Appropriation  for  preparing,  etc 71,  894  31  1899-1901 

Measure,  weight,  etc.,  how  expressed 71,  894  31  1899-1901 

Appropriation  for  preparation,  etc 87,  812  32  1901-1903 

Allowance   for  employees    88, 812  32  1901-1903 

Cablegrams  and  extra  expenses  88,  812  32  1901-1903 

Purchase  of  books,  maps,  etc 88,  813  32  1901-1903 

707 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULAR.  ETC..  'REVOLTS— Continned 

Page.  Vol.  Tear. 
Appropriation  for,  equivalents  in  measures,  etc.  to  be 

expressed     88,813  32  1901-1903 

Edition  limited    88, 813  32  1901-1903 

Deficiency   appropriation   for  publication    6,1033  32  1901-1903 

For  chief  of  bureau,  etc.,  to  prepare,  for  Depart- 
ment of  Commerce  and  Labor 1082  32  1901-1903 

Oflicer  to  prepare  instructions  for,  and  edit 830  32  1901-1903 

CONSULAR  SALARIES 

Appropriations  to  effect  a  transfer  in  settlement  of  ac- 
counts for  1872,  1873  and  1875 42,  363  19  1875-1877 

CONSULAR  SYSTEM 

Amendment  of  act  to  regulate   67-70  18  1873-1875 

Compensation  of  consuls-general  established 67,  68  18  1873-1875 

Of  agent  and  consul-general  at  Cairo 67  18  1873-1875 

Of  consul  at  Liverpool 68  18  1873-1875 

Classification  of  consulates   68  18  1873-1875 

Compensation   of   consuls  established    68-70  18  1873-1875 

Classification  of  commercial  agencies   69  18  1873-1875 

Annual  allowance  for  hire  of  clerks  at  consulates  ....          70  18  1873-1875 

Appointment   of  interpreters    70  18  1873-1875 

Salaries    70  18  1873-1875 

Additional  allowance  to  consulates  in  China  and  Japan 

for  expenses  of  interpretation    70  18  1873-1875 

Maximum   amount   of   time  necessary   to   make  transit 
between  consular,  etc.,  posts  and  Washington  to 

be  determined  by  the  Secretary  of  State 70  18  1873-1875 

Allowance  for  time  not  to  exceed,  etc 70  18  1873-1875 

Pay  of  consular  clerk  serving  five  years  and  upward  .  .          70  18  1873-1875 
Vice-consul  acting  as  consul  may  receive  compensation 

notwithstanding,   etc 70  18  1873-1875 

CONSULATES 

President  may  define  the  limits  of   57  11  1855-1859 

Appropriation  for  preservation  of  archives  of   160  11  1855-1859 

In  Turkey,  appropriations  for   20,  175,  335,  638  12  1859-1863 

At  Trinidad  de  Cuba,  may  be  discontinued   754  12  1859-1863 

In  Turkish  dominions,  exj)en3e8  of   138  13  1863-1865 

Appropriations    for    139, 422  13  1863-1865 

In   Turkish   dominions,  appropriations   for    224,413  14  1865-1867 

Established  at  Mahe,  Seychelle  Islands,  and  at  Santo 

Domingo    414  14  1865-1867 

Added  to  Schedule  B    414  14  1865-1867 

In  Turkish  dominions,  expenses  of   56,  319  15  1867-1869 

In   China,   interpreters  to    58, 319  15  1867-1869 

At  London  and  Paris  to  be  known  hereafter  as  con- 
sulates-general            320  15  1867-1869 

Classification  of   68-69  18  1873-1875 

Deficiency  appropriation  for  interpreters  for,  in  China, 

Japan,  and  Siam    133  18  1873-1875 

708 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULATES — Continued 

Deficiency  appropriation — Continued 

Page.  Vol.  Year. 
For  contiBgent  expenses  of  consulates  of  United 

States,  for  rent,  etc 133  18  1873-1875 

For  interpreters,  guards,  etc.,   at,  in   Turkish   do- 
minions            133  18  1873-1875 

At  Aix  la  Chapelle  to  be  transferred  to  Cologne 4  19  1875-1877 

At  Omoa  and  Truxillo  to  be  transferred  to  Utila,  in 

the  Bay  of  Islands  4  19  1875-1877 

Of  Omoa  and  Truxillo  changed  to  Ruatan  and  Truxillo         24  20  1877-1879 

Deficiency  appropriation  for  contingent  expenses  254,  260,  470  23  1883-1885 

Appropriation   for   clerks    115, 485  24  1885-1887 

For  contingent  expenses   117,  487  24  1885-1887 

Deficiency  appropriation  for  contingent  expenses  258,  288,  298  24  1885-1887 

Appropriation  for  clerks  at   254,  703  25  1887-1889 

For  interpreters,   guards,   etc 254,704  25  1887-1889 

For  contingent  expenses   255,  705  25  1887-1889 

Deficiency  appropriation  for  contingent  expenses    .... 

27, 565, 602, 906  25  1887-1889 

Appropriation  for  clerks  at   280,  1060  26  1889-1891 

For  additional  clerks   280,  1060  26  1889-1891 

For  interpreters,  guards,  and  marshals 280,  1060  26  1889-1891 

For  contingent  expenses    282,  1062  26  1889-1891 

Deficiency  appropriation  for  contingent  expenses   .... 

505,540,545,546,863,895  26  1889-1891 

Appropriation  for  clerk  hire   232,  504  27  1891-1893 

For    contingent    expenses    234,506  27  1891-1893 

Deficiency  appropriation  for  contingent  expenses   ....       309  27  1891-1893 

For  contingent  expenses,  1892   647  27  1891-1893 

1891   647  27  1891-1893 

1890    647  27  1891-1893 

Appropriation  for  clerk  hire    149,  823  28  1893-1895 

For  contingent  expenses   151,  825  28  1893-1895 

Deficiency  appropriation  for  contingent  expenses  .... 

425, 844, 875  28  1893-1895 

For  clerks  at   477  28  1893-1895 

Appropriation  for  repairs   583  29  1895-1897 

For  inspection  of   36,  587  29  1895-1897 

Appropriation   for   repairs    266, 827  30  1897-1899 

For    inspection    270  30  1897-1899 

Deficiency  appropriation  for  contingent  expenses   .... 

654,  711,  714,  1215, 1247  30  1897-1899 

Appropriation  for  repairs   65,  887  31  1899-1901 

For  clerk  hire  at,  not  specified,  etc 70,  893  31  1899-1901 

For  salaries  of  interpreters   70,  893  31  1899-1901 

For  clerks,  etc 69,  893  31  1899-1901 

For  contingent  expenses  71,  280,  319,  894,  1011,  1055,  1057  31  1899-1901 

Deficiency  appropriation  for  clerks   1055  31  1899-1901 


709 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULATES — Continued 

Page.  Vol.  Year. 

Appropriation  for  contingent  expenses  88,819     32  1901-1903 

Deficiency  appropriation  for  contingent  expenses 

6,  32,  553,  587,  590,  1033,  1074     32  1901-1903 

Invoices  filed  more  than  five  years  to  be  destroyed     . .       854     32  1901-1903 

CONSULATES  AND  CONSULAR  AGENTS 

Appropriation  for  salaries  of  129,  425     22     1881-1883 

Deficiency    594     22     1881-1883 

Appropriation  for  salaries  of   229,  325     23     1883-1885 

CONSULS 

Act  concerning  consuls  and  vice-consuls   254       1     1789-1799 

Notes  of  decisions  of  the  courts  of  the  United  States 

as  to  the  powers  and  duties  of  consuls 254       1     1789-1799 

Consuls  and  vice-consuls  to  take  charge  of  the  estates 

of  persons  dying  within  their  consulates 254       1     1789-1799 

Duties    as    to    stranded    vessels,    and    merchandise    on 

board  of  such  vessels 255       1     1789-1799 

A  salary  to  be  allowed  to  consuls  on  the  coast  of  Bar- 

bary   256       1     1789-1799 

Provision  for  mariners  left  in  foreign  ports  to  be  made 

by   consuls    256       1     1789-1799 

Consuls  to   receive  protests  of  captains  of   American 

ships    257       1     1789-1799 

Copies  of  consular  acts  evidence   as  originals  in   the 

courts  of  the  United  States   256       1     1789-1799 

Jurisdiction  of  the  courts  of  the  United  States  in  ac- 
tions against  foreign  consuls    79       1     1789-1799 

Duties  of  consuls  under  the  act  of  March  2,  1799,  sec- 
tion 81,  relative  to  drawback  on  exported  goods       690       1     1789-1799 

An  act  in  addition  to  the  several  acts  regulating  the 
shipment  and  discharge  of  seamen,  and  the  du- 
ties of  consuls  of  the  United  States,  July  20, 
1840    394       5     1835-1845 

Provision  as  to,  in  the  treaty  of  December   1,   1845, 

with  the  Two  Sicilies   838, 839       9     1845-1851 

Jurisdiction  of,  under  treaty  with  Hanover 863       9     1845-1851 

Decrees  and  awards  of,  to  be  enforced  by  the  United 

States  courts    80       9     1845-1851 

Jurisdiction  of  those  to  China  and  Turkey    276-280       9     1845-1851 

Jurisdiction  of,  in  Macao,  taken  away 468       9     1845-1851 

Jurisdiction  of,  under  treaty  with  Austria,  of  May  8, 

1848    945       9     1845-1851 

With    Mecklenburg    Schwerin    916       9     1845-1851 

With    New    Granada    896       9     1845-1851 

With  Sandwich  Islands   980       9     1845-1851 

General  act  for  af^pointment  of,  in  sundry  places  ...620,621     10     1851-1855 
Not  to  transact  or  be  interested  in  other  business 

620, 624     10     1851-1855 
Pay,  when  to  commence  and  cease  623     10     1851-1855 

710 


CONSOLIDATED  INDEX  TO  STATUTES 

consuls— Continued 

Page.  Vol.        Year. 

Absence  of,  from  their  posts   623  10  1851-1855 

Only  resident  citizens  to  be  appointed,  except,  etc.       623  10  1851-1855 

Location  of  consulates  in  central  places   623  10  1851-1855 

Office  hours    623  10  1851-1855 

Bonds   of    623  10  1851-1855 

Fees    of    623, 624  10  1851-1855 

How  to  apply  for  an  exequatur   623  10  1851-1855 

Power  respecting  passports    624  10  1851-1855 

Not  entitled  to  commissions   624  10  1851-1855 

Duties   as   to    seamen    624,625,626  10  1851-1855 

Eeturns  by  625  10  1851-1855 

Penalties    on    625  10  1851-1855 

Liable  in  damages  for  neglect  of  duty  625  10  1851-1855 

Duty  of,  when  citizens  die  abroad 625,  626  10  1851-1855 

Kecord    books    626  10  1851-1855 

Archives    623, 626  10  1851-1855 

Clerk  hire  and  office  rent  not  allowed   626  10  1851-1855 

And  commercial  agents  (see  Commercial  Agents)  .        ...  10  1851-1855 

Appropriations  for   659  10  1851-1855 

Stipulations  respecting,  in  treaties  with  Argentine  Con- 
federation          1010  10  1851-1855 

Bremen    961  10  1851-1855 

Costa  Eica    922  10  1851-1855 

France 992  10  1851-1855 

Guatemala     886  10  1851-1855 

Hamburg   961  10  1851-1855 

Netherlands    1150  10  1851-1855 

Lubeck     961  10  1851-1855 

New   Granada    900  10  1851-1855 

Peru   943  10  1851-1855 

San    Salvador    897  10  1851-1855 

General  act  establishing  salaries  of   52  11  1855-1859 

Salaries  of,  at  places  in  the  following  countries  and 

their   dependences — Austria    53, 54  11  1855-1859 

Barbary  States    54  11  1855-1859 

Bavaria    53  11  1855-1859 

Belgium     53  11  1855-1859 

BoUvia    54  11  1855-1859 

Brazil    54  11  1855-1859 

Buenos  Ayres    54  11  1855-1859 

Chile    54  11  1855-1859 

China    53  11  1855-1859 

Denmark    53, 54  11  1855-1859 

Ecuador     54  11  1855-1859 

Fiji  Islands    54  11  1855-1859 

France    53  11  1855-1859 

Great    Britain    53, 54  11  1855-1859 

Greece    54  11  1855-1859 


711 


CONSOLIDATED  INDEX  TO  STATUTES 


COmSJILS—Cotitinued 

Salaries  of,  in — Continued. 

Hanseatic    and   Free   Cities    

Honduras     

Mexico     

Muscat     

Netherlands    

New   Granada    

New  Zealand   

Nicaragua     

Peru     

Portugal    

Prussia    

Russia    

Sandwich  Islands    

Sardinia    

Saxony     

Sicilies     .^ 

Society    Islands     

Spain     

Switzerland     

Turkey     

Tuscany 

Urguay    

Venezuela    

Wurttemberg    

In  all  other  places  to  be  paid  by  fees 

When  salary  is  to  commence  and  cease 

Pay  of,  when  performing  diplomatic  functions   .  .  . 
Certain,  prohibited  from   mercantile  business    .... 

Bond  to  that  effect 

Penalty  for  violation  of   

Interpreters  to,   in  China   

Bonds   of    55, 

President  may  define  limits  of  consulates 

May  provide  for  appointment  of  vice-consuls,  etc 

Fees  of,  how  established  

Copy  of  tariff  of,  to  be  annexed  to  clearances  .  . . 
To  be  posted  in  consular  offices 

Receipts  for,  to  be  given 

In  what  coinage  payable 

Penalty  for  extortion  as  to   

Papers  may  be  detained  until  payment  of 

To  be  accounted  for  

Accounts  of,  how  kept  and  rendered   

Absence  from  post,  regulations  as  to 

Deduction  from  i)ay  therefor   

Correspondence  on  public  affairs  abroad,  forbidden  .  .  . 

Recommendations   to   or  acceptance   of   office,   abroad, 

forbidden    


Page.  Vo 

I.        Year. 

54  1 

1  1855-1859 

54  1 

1  1855-1859 

54  1 

1  1855-1859 

54  1 

1  1855-1859 

53 

54  1 

1  1855-1859 

54  1 

1  1855-1859 

54  1 

1  1855-1859 

54  1 

1  1855-1859 

54  1 

1  1855-1859 

53 

54  1 

1  1855-1859 

53 

54  1 

1  1855-1859 

53  1 

1  1855-1859 

54  1 

1  1855-1859 

53 

54  1 

1  1855-1859 

53  1 

1  1855-1859 

53  1 

1  1855-1859 

54  1 

1  1855-1859 

53  1 

1  1855-1859 

53  1 

1  1855-1859 

53 

54  1 

1  1855-1859 

53 

54  1 

1  1855-1859 

54  1 

1  1855-1859 

54  1 

1  1855-1859 

54  1 

1  1855-1859 

55  1 

1  1855-1859 

55 

56  1 

1  1855-1859 

56  1 

1  1855-1859 

55 

57  1 

1  1855-1859 

55  1 

1  1855-1859 

55  1 

1  1855-1859 

55  1 

1  1855-1859 

56 

57  1 

1  1855-1859 

57  1 

1  1855-1859 

57  1 

1  1855-1859 

57  1 

1  1855-1859 

57  1 

1  1855-1859 

58  1 

1  1855-1859 

58  1 

1  1855-1859 

63  1 

1  1855-1859 

58  1 

1  1855-1859 

63  1 

1  1855-1859 

58  1 

1  1855-1859 

"18 

59  1 
59  1 

1  1855-1859 

1  1855-1859 

59  1 

1  1855-1859 

59  1 

1  1855-1859 

59  1 

1  1855-1859 

712 


CONSOLIDATED  INDEX  TO  STATUTES 


1859 
1859 
1859 
1859 
1859 
1859 
1859 
1859 
1859 
1859 
1859 
1859 
1859 
•1859 
■1859 
■1859 
■1859 
■1859 


CONSULS — Continued 

Page.  Vol.  Year. 
Being  interested  in  boarding  or  supplying  seamen,  for- 
bidden             59  11  1855-1859 

Commissions  on  wages,  forbidden  59  11  1855-1859 

Named  in  Schedules  B  and  C  to  have  no  pay  unless 

they  are  citizens   60  11  1855 

Contingencies  for  offices  of    60  11  1855 

President  may  prescribe  rules  for  business   60  11  1855 

Passports,  rules  as  to    60, 61  11  1855 

May  administer  oaths    61  11  1855 

Act    as   notaries    61  11  1855 

Seamen,  duties  in  case  of  desertion  by  or  discharge  of    62,  63  11  1855 

Certificates  to  invoices   63  11  1855 

To  furnish  prices  current   63  11  1855 

Masters  compelled  to  apply  to,  for  consular  services  .  .          63  11  1855 

Construction  of  act  of  1856,  chapter  127,  respecting  .  .          64  11  1855 

Penalties  on,  for  violation  of  duty 58,  64  11  1855 

Kepeal  of  parts  of  former  acts   65  11  1855 

To  procure  and  transmit  commercial  information   ....60,139  11  1855 

Consuls-general  may  be  appointed  instead  of 53  11  1855 

Appropriations  for   12, 28  11  1855 

Provision  authorizing  pupils  to,  repealed 160  11  1855 

Bate  of  pay  of   220  11  1855 

Of  Spain  at  New  Orleans,  revocation  of  exequaturs  of, 

in  1850,  Proclamation  No.  36   787  11  1855-1859 

Of  Great  Britain,  at  New  York,  Philadelphia,  and  Cin- 
cinnati;   revocation  of   exequaturs   of,   in   1856, 

Proclamation  Nos.  43,  44,  45   792,  793  11  1855-1859 

Appropriations  to  pay  salaries,  etc.,  of  

20,21,171,335,336,639,648  12  1859-1863 
Of  the  United  States,  in  China,  Japan  and  Siam,   to 
have  certain  judicial  powers  in  addition  to  pow- 
ers imposed  by  treaties  72  12  1859-1863 

As  to  crimes  and  misdemeanors 72  12  1859-1863 

As  to  civil  rights   73  12  1859-1863 

Provisions  of  act  in  a  certain  degree  extended  to  Tur- 
key               76  12  1859-1863 

Also    to    Persia,    Morocco,    Muscat,    Tripoli,    and 

Tunis   76  12  1859-1863 

Civil  and  criminal  jurisdiction,  how  to  be  enforced  ...          73  12  1859-1863 
Forms  of  proceedings,  etc.,  to  be  furnished  by  min- 
isters              73  12  1859-1863 

Consuls   may   assent    or    dissent,    and   proceedings 

thereon     73  12  1859-1861 

On   complaint,   etc.,   properly   filed   and   authenticated, 

may  issue  warrant  for  arrest  for  offenses 74  12  1859-1863 

Or  upon  facts  vrithin  their  own  knowledge 74  12  1859-1863 

May  try,  convict,  and  sentence  offender    74  12  1859-1863 

Punishment  to  be  proportioned  to  offense    74,  75  12  1859-1863 

To  be  either  fine  or  imprisonment,  except,  etc.  ...   74,  75  12  1859-1863 


713 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULS — Continued 

Page.  Vol.  Year. 

Povrer  to  punish  for  contempt   74  12  1859-1863 

Jurisdiction  of,  without  right  of  appeal,  in  civil  and 

criminal  cases    74  12  1859-1863 

In  civil  cases  arising  under  treaties   74  12  1859-1863 

Jurisdiction  of,  with  right  of  appeal 74  12  1859-1863 

"When  may  call  to  their  assistance  aid  of  not  over  four 

persons    74  12  1859-1863 

Proceedings  in  such  case   74  12  1859-1863 

When   may   call   in   aid,   in   civil  cases   arising  under 

treaties    74, 75  12  1859-1863 

Proceedings  in  such  cases 75  12  1859-1863 

Evidence  in  all  cases,   civil  and  criminal,  how   to  be 

taken    75  12  1859-1863 

Objections  to   testimony,   and  rulings   thereon,   to 

be  noted    75  12  1859-1863 

May  assent  to  settlement  of  certain  criminal  cases  by 

parties    76  12  1859-1863 

To  favor  settlement  of  civil  cases  by  parties  or  by  ar- 
bitration      76  12  1859-1863 

May  call  on  local  authorities  for  aid 76  12  1859-1863 

Meaning  of  word  "consul"  in  this  act 76  12  1859-1863 

To  be  responsible  to  the  United  States  for  their  diplo- 
matic and  judicial  conduct   76  12  1859-1863 

When  and  who  to  act  in  the  absence  of  minister 76  12  1859-1863 

What  expenses  may  be  allowed  in  the  adjustment  of 

their  accounts    77  12  1859-1863 

Authority  of,  and  of  commercial  agents  in  uncivilized 

countries    78,79  12  1859-1863 

Effect  of  marriages  abroad  solemnized  by  79  12  1859-1863 

Certificate  thereof  to  be  returned  to  Department  of 

State    79  12  1859-1863 

What  to  specify   79  12  1859-1863 

Salaries  of,  at  Kanagawa  and  Nagasaki,  established  .  .  171  12  1859-1863 

May  be   appointed   for   certain   foreign   ports,   during 

present  insurrection    285  12  1859-1863 

When  employment  to  cease    285  12  1859-1863 

Pay  not  to  exceed  $1,500  per  annum   285  12  1859-1863 

Pay  of  certain,  in  foreign  ports,  may  be  increased  .  .  .  285  12  1859-1863 

But  for  not  longer  than,  etc 285  12  1859-1863 

Salaries  of,  at  Bremen,  Newcastle-on-Tyne,  Pictou, 
Nova  Scotia,  Port  Mahon,  and  Swatow,  estab- 
lished     336  12  1859-1863 

Not  to  be  appointed  except  to,  etc 336  12  1859-1863 

Nor  their  compensation  increased  336  12  1859-1863 

Increased   salaries   to   certain    336  12  1859-1863 

To  report  fraudulent  practices  upon  the  revenue,  etc.  .  559  12  1859-1863 

Vice-consuls,  or  commercial  agents  of  the  United  States 
abroad,  duties  of,  as  to  invoices  of  imports  of 

foreign  goods  (see  Frauds)    737,  738  12  1859-1863 

714 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULS — Continued 

Page.  Vol.  Year. 

One  may  be  appointed  at  Cienfuegos 754  12  1859-1863 

Of  foreign  countries,   certain,   not  subject   to   income 

tax,  when,  etc 17,  305  13  1863-1865 

Of   certain    foreign   nations   to   have   Jurisdiction   over 
certain  controversies  between  officers  and  crews 

of  vessels    121  13  1863-1865 

Mode  of  exercising  it    121  13  1863-1865 

Appropriations  for  salaries  of   138,  422  13  1863-1865 

Salaries  of  certain,  established   139  13  1863-1865 

Of  the  United  States  in  Belgium,  attributions  of 650  13  1863-1865 

Appropriations  for  pay  and  expenses  of   ...224,225,413,414  14  1865-1867 

Pay  of,  established  at  Barcelona 225  14  1865-1867 

Chemnitz    414  14  1865-1867 

Hankow     225  14  1865-1867 

Lisbon    225  14  1865-1867 

Mahe    414  14  1865-1867 

Malta    225  14  1865-1867 

Munich    414  14  1865-1867 

Nantes     225  14  1865-1867 

Nice    225  14  1865-1867 

Prince  Edward  Island   225  14  1865-1867 

Quebec     414  14  1865-1867 

Kome    414  14  1865-1867 

St.  Catherines   (Brazil)    225  14  1865-1867 

St.  Johns  (Canada  East)    225  14  1865-1867 

Santa   Cruz    225  14  1865-1867 

Spezzia    414  14  1865-1867 

Tampico    225  14  1865-1867 

Fees  of  certain,  to  be  accounted  for  to  Secretary  of 

Treasury    226  14  1865-1867 

Excess  of  over  $2,500  a  year  above,  etc.,  to  be  paid  to 

Secretary   of   Treasury    226  14  1865-1867 

No  pay  to  any,  not  a  native  or  naturalized  citizen  of 

the  United  States   414  14  1865-1867 

At  Quebec,  compensation  to  312  14  1865-1867 

Compensation  of,  established   414  14  1865-1867 

In  Egypt,  certain  judicial  powers  given  to 322  14  1865-1867 

Not  to  exact  tonnage  fees   on   United  States   vessels 

touching  at  ports  in  Canada,  unless,  etc 260  15  1867-1869 

Duly  certified  copies  of  official  papers,  etc.,  in  office  of, 
to  be  admissible  in  evidence  in  United  States 

courts     266  15  1867-1869 

Privileges  of,   as  provided  in  the  treaty  with  Mada- 
gascar      491  15  1867-1869 

With   Nicaragua    555  15  1867-1869 

At  Panama  to  be  mail  agent  1119  16  1869-1871 

His  duties 1119  16  1869-1871 

At  Matamoras,  Mexico,  salary  of,  established 12  17  1871-1873 

One  authorized  at  Santarem,  Brazil 383  17  18714873 

715 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULS — Continued 

Page.  Vol.  Year. 

Salary  of  at  Tientsin,  China,  established 120  17  1871-1873 

Compensation  to  be  allowed  certain,  for  extraordinary 

services  during  the  late  war  in  Europe 123  17  1871-1873 

Duty  of,  as  to  effects  of  seamen  and  apprentices  dying 

abroad    272  17  1871-1873 

In  foreign  countries,  to  pay  foreign  postage  on  letters 

for  the  United  States  detained  in  foreign  ports       317  17  1871-1873 
At  Havre  and  La  Eochelle,  additional  compensation  to, 

for  extraordinary  services  during  the  late  war 

in  Europe   531  17  1871-1873 

(See  Diplomatic  and  Consular  Officers) 18  1873-1875 

Appropriation  for  salaries  of    67,  322,  414  18  1873-1875 

Transfer  in  accounts  of  State  Department  for  salaries 

of    405  18  1873-1875 

Compensation    of    68  18  1873-1875 

Annual  allowance  to  certain,  for  clerk  hire 70  18  1873-1875 

At  Yladivostock,  Fayal,  and  Auckland  exempted  from 

prohibition  to  engage  in  business   486  18  1873-1875 

(See  Consular  Officers)    19  1875-1877 

Appropriations  for  salaries  of  171,  233  19  1875-1877 

Meaning  of  the  word,  as  used  in  Revised  Statutes,  title 

47,  defined    2  19  1875-1877 

Appropriations  for  salaries  of   93,  268  20  1877-1879 

For  deficiencies  in    115  20  1877-1879 

Clothed  with  judicial  powers,  subject  to  Eevised  Stat- 
utes, title  47    131  20  1877-1879 

Shall  make  reports  of  exports,  imports,  etc 273  20  1877-1879 

Of  rates  of  wages  274  20  1877-1879 

Convention  with  Italy  concerning  rights,  etc.,  of 725  20  1877-1879 

Appropriations  for  salaries  of 135,  340  21  1879-1881 

Deficiency  appropriation  for  contingent  expenses  of  . .       253  21  1879-1881 

For  salaries  of   427  21  1879-1881 

Not  to  receive  salaries  as  secretaries  or  interpreters  of 

legations    329  23  1883-1885 

Appropriation  for  salaries    250,  700  25  1887-1889 

Deficiency   appropriation   for   salaries    27,566,602  26  1887-1889 

Con%'ention  regulating  rights,  powers,   and  immunities 

of,  in  Zanzibar   1439  25  1887-1889 

To  pay  expenses  of  discharged  seamen  from  wages  re- 
ceived              80  25  1887-1889 

Deficiency  from  reUef  fund   80  25  1887-1889 

To  transmit  monthly  reports  on  agriculture   186  25  1887-1889 

To  furnish  reports  of  prices  of  agricultural  products, 

etc 186  25  1887-1889 

To  report  on  agricultural  implements,  pursuits,  etc.  .  . .       187  25  1887-1889 

Appropriation  for  instruction  and  transit  pay 224,497  27  1891-1893 

For  salaries   228, 501  27  1891-1893 

To  issue  bills  of  health ;  contents   450  27  1891-1893 

Detail  of  medical  officers  in  office  of 450  27  1891-1893 

716 


CONSOLIDATED  INDEX  TO  STATUTES 
COKSVLS— Continued 

Page.  Vol.         Year. 

Health  regulations  to  be  posted  in  office 451  27  1891-1893 

To  make  weekly  sanitary  reports  from  specified  ports  .        451  27  1891-1893 

Appropriation  for  instruction  and  transit  pay 142,816     28  1893-1895 

For  salaries    145, 819  28  1893-1895 

Deficiency  appropriation  for  salaries   486  28  1893-1895 

Appropriations  for   32  29  1895-1897 

Treaty  with  Japan   848  29  1895-1897 

Appropriation    for    267,828  30  1897-1899 

For  present  incumbent  at  certain  consulates  whose 

location  has  been  changed   221  30  1897-1899 

Bonds  of,   prescribed,   etc 770  30  1897-1899 

Embezzlement  defined ;   penalty   771  30  1897-1899 

Appropriation  for  salaries    65,  887  31  1899-1901 

For  instruction  and  transit  pay    61,  883  31  1899-1901 

For  transporting  remains    64,  886  31  1899-1901 

Appropriation  for  salaries   81,  813  32  1901-1903 

CONSULS  OF  CHINA 

In  ports  of  the  United  States,  treaty  provisions  con- 
cerning           740     16     1869-1871 

CONSULS  AND  COMMERCIAL  AGENTS 

Fine  and  imprisonment  to  be  imposed  on  consuls  and 
commercial  agents  giving  false  certificates, 
March  3,  1835   773       4     1823-1835 

CONSULS  AND  CONSULAR  OFFICERS 

Provisions  respecting,  in  the  convention  with  Belgium  757-763     16     1869-1871 

CONSULS  AND  CONSULATES 

Treaty    provisions     respecting     (see     Japan;     Persia; 

Siam;  Swdss  Confederation;   Two  Sicilies) 11     1855-1859 

Treaty  provisions  respecting   (see  titles  of  the  several 

treaties  with  foreign  countries)    12     1859-1863 

CONSULS  OF  FOREIGN  GOVERNMENTS 

Exempt  from  income  tax  if,  etc 260     16     1869-1871 

CONSULS  AND  VICE-CONSULS 

An  act  supplementary  to  "An  act  concerning  consuls 
and  vice-consuls,"  and  for  the  further  protec- 
tion of  American  seamen,  February  28,  1803   .  .        203  2  1799-1813 

Provisions  concerning,  in  treaty  with  Bolivia 1019  12  1859-1863 

With  Liberia    1246  12  1859-1863 

Provisions  concerning,  in  treaty  with  Denmark 605,  606  13  1863-1865 

Treaty  provisions  with  the  Dominican  Republic  con- 
cerning     487,488  15  1867-1869 

With  Italy 605-613  15  1867-1869 

CONSULS-GENERAL 

In   British   provinces    673     10     1851-1855 

Title  of,  may  be  conferred  in  Asia  and  Africa 626     10     1851-1855 


717 


CONSOLIDATED  INDEX  TO  STATUTES 

C0HSVLS-GE^ERAL—Co7itinued 

Page.  Vol.  Tear. 

At  Beirout    564  10  1851-1855 

At  Simoda,   Japan    659  10  1851-1855 

Salaries  of,  at  Alexandria  for  Egypt 53  11  1855-1859 

Calcutta  for  British  India   53  11  1855-1859 

Constantinople  for  Turkey    53  11  1855-1859 

Frankfort-on-the-Main    for    Hanseatic    and    Free 

Cities    53  11  1855-1859 

Habana  for  Cuba   53  11  1855-1859 

Quebec  for  British  North  America 53  11  1855-1859 

Simoda  for  Japan    53  11  1855-1859 

In  all  other  places  to  be  paid  by  fees 55  11  1855-1859 

Act  establishing  salaries  of   52,  53  11  1855-1859 

Appointment  instead  of  consuls  or  commercial  agents 

authorized   53  11  1855-1859 

Pay  in  such  cases   (see  Consuls  and  Consuls-Gen- 
eral)               53  11  1855-1859 

Of  British  North  America,  salary  of,  to  be  full  com- 
pensation             404  11  1855-1859 

Certain  fees  to  be  accounted  for 404  11  1855-1859 

Fees  for  certifying  invoices,  etc 404  11  1855-1859 

Appropriations  to  pay  office  rent  and  salaries  of 

20,  171,  335,  638  12  1859-1863 

At  Simoda,  office  of,  abolished   171  12  1859-1863 

To  Haiti  and  Liberia  authorized   421  12  1859-1863 

Pay,    etc 421  12  1859-1863 

Appropriations  for  salaries  of   138,  422  13  1863-1865 

Fees   of,   for   British    North   American   provinces,    for 

certifying  invoices    140  13  1863-1865 

Appropriations    for     224,  225,  413,  414  14  1865-1867 

At  Alexandria,  certain  power  given  to 322  14  1865-1867 

Appropriations  for  salary  of,  at  Haiti  and  Liberia  .  .142,471  17  1871-1873 

At  Constantinople  to  be  secretary  of  legation   472  17  1871-1873 

(See  Diplomatic  and  Consular  Officers)    18  1873-1875 

Appropriation   for  salaries  of    67,322,414  18  1873-1875 

Transfer  in  accounts  of  State  Department  for  salaries 

of    405  18  1873-1875 

Compensation   of   67, 68  18  1873-1875 

Annual  allowance  to  certain,  for  clerk  hire 70  18  1873-1875 

(See  Consular  Officers)    19  1875-1877 

Appropriations  for  salaries  of   171,  233  19  1875-1877 

"Word  "consul"  as  used  in  Eevised  Statutes  title  47, 

to    include    2  19  1875-1877 

Appropriation  for  salaries  of   92,  268  20  1877-1879 

For  deficiencies   in    115  20  1877-1879 

Clothed  with  judicial  powers,  subj/ect  to  Revised  Stat- 
utes, title  47    131  20  1877-1879 

Convention  with  Italy  concerning  rights,  etc.,  of   ....        725  20  1877-1879 

Appropriation  for  salaries  of 134,  135,  340  21  1879-1881 

Appropriations  for  salaries  of  129,  425  22  1881-1883 

718 


CONSOLIDATED  INDEX  TO  STATUTES 

CONSULS-GENERAL— Co«  tinned 

Page.  Vol.  Year. 

Salary  of  the,  at  Vienna,  limited   603  22  1881-1883 

Appropriations  for  salaries  of   228,  229,  322,  323,  324  23  1883-1885 

Not  to  receive  salaries  as  secretaries  or  interpreters  of 

legations    329  23  1883-1885 

Appropriation  for  salaries 250,  699  25  1887-1889 

Appropriation  for  salaries    145,  819  28  1893-1895 

Appropriations  for   32, 584  29  1895-1897 

Appropriation    for    267,827  30  1897-1899 

For  present  incumbent  at  certain  consulates  whose 

locations  have  been  changed    221  30  1897-1899 

Bonds  of,  prescribed 770  30  1897-1899 

Embezzlement  defined ;  penalty   771  30  1897-1899 

Appropriation    for    65,887  31  1899-1901 

Appropriation  for  salaries    81,  813  32  1901-1903 

CONSULS-GENERAL,  CONSULS,  ETC. 

Appropriations    for    28,160,311,403  11  1855-1859 

Seamen,  relief   of    311,  403  11  1855-1859 

Shipwreck,  acknowledgment  for  rescue  of  citizens,  etc., 

from     311,403  11  1855-1859 

Pay  of  salaried    328,  403  11  1855-1859 

Appropriations  for  salaries  of    57,58,319,322  15  1867-1869 

Not  to  receive  salaries  while  absent  from  their  posts, 

if,    etc 58  15  1867-1869 

Moneys  in  excess  of  $1,000  in  any  year,  received  by, 

from  vice-consuls,  etc.,  to  be  paid  into  the  Treas- 
ury              57  15  1867-1869 

Not  over  $500  to  be  allowed  in  any  year  for  expenses 

of  vice-consulate   58  15  1867-1869 

Salary   of    consuls,    at   present    $1,500    a   year,    to    be 

$2,000  when  the  fees  paid  into   Treasury  from 

their  consulates  exceed  $3,000  a  year 58  15  1867-1869 

Salary  of  consul  established  at  Guaymas 57  15  1867-1869 

At  Osaka  and  Jeddo,  Japan 58  15  1867-1869 

To  exercise  duties  of  only  one  such  office 322  15  1867-1869 

Appropriations  for  salaries   of    219,220,417,418  16  1869-1871 

Appropriation  for  pay  of,  at  Hiogo  and  Osaka 517  16  1869-1871 

Provisions  concerning,  in  the  treaty  with  the  Austro- 

Hungarian     monarchy      (see     Austro-Hungarian 

Monarchy)     822-831  17  1871-1873 

In  treaty  with   the   German  empire    (see   German 

Empire)    921-932  17  1871-1873 

Appropriations  for  salaries,  etc.,  of 143, 144,  472  17  1871-1873 

Provisions  concerning,  in  treaty  with  Peru 713  18  1873-1875 

Reception  of,  in  treaty  with  Salvador   740  18  1873-1875 

In  treaty  with  Orange  Free  State   750  18  1873-1875 

Commissions  of,  in  treaty  with  Salvador 741  18  1873-1875 

Functions  of,  in  same  741-745  18  1873-1875 


719 


CONSOLIDATED  INDEX  TO  STATUTES 

Fage.  Vol.        Year. 

FOREIGN  CONSULS 

Tho  j>ai>ors  of  foreign  vessels  to  be  deposited  with  the 

consul  of  the  nation  to  which  the  vessels  belong  362  3  1813-1823 
The  consuls  not  to  redeliver  papers  until  a  clearance  of 

the  vessel  is  produced   362       3     1813-1823 

Restriction  of  the  provisions  of  the  act  as  to  foreign 

vessels  of  nations  in  which  American  consuls  are 

not    permitted    362       3     1813-1823 

To  be  exempt  from  income  duty  when,  etc 305     13     1863-1865 

Protest  against  pardons  of,  by  foreign  governments,  on 

condition  of  emigration  to  the  United  States  .  .  353  14  1865-1867 
Such  acts  not  to  be  repeated 353     14     1865-1867 


720 


COMPENDIUM 


CONSULAR  FUNCTIONS 
INTRODUCTION 

Division  of  consular  functions;  see  Atty.  Gen.  Vol.  VII,  p. 
260,  1855,  TJ.  S. 

Source  of  consular  functions  and  privileges;  see  Atty.  Gen. 
Vol.  VII,  p.  248,  1855,  U.  S. 

Enumeration  of  consular  functions;  see  Harrison  v.  Vose, 
1849,  TJ.  S. 

Consular  functions  are  not  limited  to  those  enumerated  by 
statute ;  see  Potter  v.  Ocean  Ins.  Co.,  1837,  JS.  S. 

How  consular  functions  are  determined;  see  Potter  v.  Ocean 
Ins.  Co.,  1837,  U.  S. 

Consul 's  action  is  in  itself  a  presumption  of  his  right  to  act ; 
see  Potter  v.  Ocean  Ins.  Co.,  1837,  IT.  S. 

To  determine  the  basis  for  the  consul's  action  in  the  per- 
formance of  certain  functions  reference  should  be  had  to  the 
terms  of  his  exequatur  and  the  regulations  of  the  sending  state; 
see  Atty.  Gen.  Vol.  VIII,  p.  102,  1856  TJ.  S. 

Consul  may  not  discharge  functions  contrarily  to  the  law  of 
the  receiving  state ;  see  Atty.  Gen.  Vol.  VIII,  p.  100,  1856,  TJ.  S. 

For  consuls  knowingly  to  attempt  to  contravene  the  spirit 
of  the  laws  of  the  receiving  state  is  a  violation  of  the  sovereign 
rights  of  the  receiving  state;  see  Atty.  Gen.  Vol.  VIII,  p.  470, 
1856,  U.  S. 

"No  invariable  test  can  be  derived  from  international  law, 
or  from  the  general  character  of  the  consular  office,  by  which  to 
determine  what  services  performed  by  the  consul  are  official  ser- 
vices, and  what  are  not;"  see  Atty.  Gen.  Vol.  XIX,  p.  197,  1888, 
U.  S. 

Origin  and  development  of  consular  functions;  see  Atty. 
Gen.  Vol.  VII,  p.  346-349,  1855,  U.  S. 

Basis  of  consular  functions;  see  Atty.  Gen.  Vol.  VII,  p.  249, 
1855,  U.  S. 

Classification  of  consular  functions  according  to  the  nature 
of  the  consular  fee ;  see  Atty.  Gen.  Vol.  VII,  p.  260,  1855,  TJ.  S. 

721 


CONSULAR  FUNCTIONS 

Consuls  have  other  powers  than  those  enumerated  by  statute ; 
see  Atty.  Gen.  Vol.  VII.  p.  249,  1855,  U.  S. 

Enumeration  of  tlio  functions  appertaining  to  the  office  of 
consul;  see  Viveash  v.  Becker,  1814,  G.  B. 

NON-MINISTERIAL  OR  OFFICIATORY  ACTS 
(A.)  Marriage 

Discussion  of  consular  marriages  concluding  that  United 
States  consuls  have  not  the  right  to  solemnize;  see  Atty.  Gen. 
Vol.  Vn,  p.  18,  1854,  IT.  S. 

Solemnization  by  American  consul;  see  Loring  v.  Thorndike, 
1862,  TJ.  S. 

Consuls  might  acquire  the  right  to  solemnize  marriage  by 
municipal  act  of  any  foreign  government  giving  legality  to  a 
marriage  within  it  so  celebrated,  in  which  case  there  would  be 
nothing  in  our  law,  or  in  our  public  policy,  to  forbid  a  consul  of- 
ficiating in  that  relation ;  secondly,  perhaps,  specially  by  treaty, 
or  generally  by  act  of  congress;  see  Atty.  Gen.  Vol.  VII,  p.  343, 
1855,  TJ.  S. 

Consuls  do  not  possess  power  to  solemnize  marriage  and 
department  of  state  cannot  give  them  that  power;  see  Atty.  Gen. 
Vol.  VII,  p.  342,  1855,  U.  S. 

"If,  indeed,  being  a  subject  of  the  state,  he  has  power  as  a 
local  magistrate  to  solemnize  marriage,  or,  being  a  foreigner,  he 
has  the  same  power  as  clergj^man.  he  may  do  it.  but,  in  either 
case,  not  in  his  capacity  as  consul;"  see  Atty.  Gen.  Vol.  VII,  p. 
343,  1855,  U.  S. 

Consul  is  legally  incapable  of  solemnizing  marriage  without 
authority  of  the  local  government ;  see  Atty.  Gen.  Vol.  VII,  p.  343, 
1855,  V.S. 

(B.)  Arbitration 

Consul  has  no  judicial  power  but  acts  as  arbitrator  in  cer- 
tain cases ;  see  Atty.  Gen.  Vol.  VIII,  p.  382,  1857,  U.  S. 

"When  a  consul  intervenes  in  a  controversy  between  master 
and  seamen,  by  mutual  consent  of  the  disputants,  he  acts  as  an 
arbitrator  and  not  as  consul;"  see  Atty.  Gen.  Vol.  XXI,  p.  201, 
1895,  TJ.  S. 

PROTECTION  OF  NATIONALS 

Treaty  with  Austria  gives  Austrian  consul  right  to  apply  to 
local  authorities  for  protection  of  his  countrymen ;  see  Von  Tho- 
dorovlch  v.  Franz  Josef,  1907,  TJ.  S. 

722 


COMPENDIUM 

Sailors  generally  under  jurisdiction  of  consul  ©f  nationality 
of  ship  for  matters  concerning  shipping,  but  in  other  cases,  and 
in  those  of  special  gravity,  the  consul's  duty  to  care  for  nationals 
revives;  see  Two  Friends,  1799,  Or.  B. 

"Officious"  letters  of  British  consuls  were  not  allowed  to  be 
read  in  court  when  the  United  States  government  felt  that  the 
British  government  was  attempting  to  violate  the  neutrality  laws 
of  the  United  States;  see  Atty.  Gen.  Vol.  VIII,  p.  469;  1855,  U.  S. 

Consul  intervenes  to  prevent  the  state  of  Louisiana  taxing 
an  estate  contrary  to  treaty;  see  (Succession  of)  Dufour,  1855, 
U.  S. 

Consul  of  Oldenburg  charged  with  the  duty  of  looking  after 
prizes  and  nationals  detained  as  prisoners  of  war  and  making  the 
necessary  intercessions  before  the  proper  tribunals  to  procure 
them  their  liberty;  see  Viveash  v.  Becker,  1814,  G.  B. 

Consul's  functions  "are  purely  of  a  commercial  nature,  and 
such  as  properly  belong  to  a  consul,  those  of  advice  and  interces- 
sion and  there  is  no  one  function  of  state  purposed  to  be  per- 
formed by  him  as  representing  the  sovereign  of  his  state;  see 
Viveash  v.  Becker,  1814,  G.  B. 

Consul  intervened  to  secure  the  release  of  an  imprisoned 
American;  see  Atty.  Gen.  Vol.  XXII,  p.  32,  1898,  TJ.  S. 

Protection  of  Filipinos  and  Porto  Ricans  by  American  con- 
suls; see  Atty.  Gen.  Vol.  XXIII,  p.  402-404,  1901,  U.  S. 

Statutes  for  care  of  destitute  seamen  do  not  apply  to  Fili- 
pinos; see  Atty.  Gen.  Vol.  XXIII,  p.  402,  1901,  U.  S. 

DUTIES  IN  CARING  FOR  THE  INTERESTS  OF  ABSENT  OR  IN- 
CAPACITATED  NATIONALS 

See  Stewart  v.  Linton,  1902,  IT.  S.;  St.  John  v,  Croel,  1843, 
TJ.  S. ;  Riley  v.  The  Obeli  Mitchell,  1861,  U.  S. 

(A.)  Care  of  minors 

Consuls  should  repatriate  a  minor  stowaway ;  see  Luscom  v. 
Osgood,  1844,  U.  S. 

Consul's  duty  to  look  after  estates  left  to  minors;  see  Atty. 
Gen.  Vol.  VIII,  p.  100,  1856,  U.  S. 

Consul  may  not  appear  for  an  infant,  party  to  proceedings, 
so  as  to  give  the  surrogate's  court  jurisdiction  of  such  party, 
without  the  issuance  of  a  citation ;  see  (In  re)  Peterson's  Will, 
1906,  TJ.  S. 

723 


CONSULAR  FUNCTIONS 
(B.)  Care  of  estates 

See  (In  re)  Tartaglio,  1895.  U.  S.;  (Succession,  of)  Rabasse, 
1895,  U.  S.;  (In  re)  Davenport,  1904,  U.  S. 

Consul 's  duty  to  care  for  estate  left  to  heirs  in  sending  state ; 
see  Atty.  Gen.  Vol.  VIII,  p.  100,  1856,  IT.  S. 

Nature  of  consul's  action  when  caring  for  estates;  see  Atty. 
Gen.  Vol.  VIII,  p.  99,  1856,  TJ.  S. 

French  consul  intervenes  to  prevent  the  state  of  Louisiana 
taxing  an  estate  contrarily  to  treaty ;  see  (Succession  of)  Dufour, 
1855,  TJ.  S. 

"It  is  clear  that  under  this  treaty  system  between  these  three 
Latin  countries — Spain,  Italy,  and  France — the  consul  is  to  exer- 
cise an  exterritorial  judicial  power  and  to  be  the  real  adminis- 
trator of  the  estate ;  but  that  disputes  in  which  the  country  where 
the  death  occurred  has  some  special  interest,  as  where  its  own 
people  or  the  people  of  a  third  country  whom  it  should  protect 
are  concerned,  are  to  be  carved  out  of  his  jurisdiction  and  set- 
tled by  the  local  judicial  authority,  leaving  him  to  resume  his 
functions  when  these  special  questions  have  been  determined;" 
see  Atty.  Gen.  Vol.  XXIII,  p.  104,  1900,  V.  S. 

Consul  must  give  heed  to  state  laws  when  real  property  is 
included ;  see  Atty.  Gen.  Vol.  VII,  p.  272,  1855,  TJ.  S. 

Consul's  duties  in  caring  for  estates  and  the  application  of 
the  law  of  1855;  see  Atty.  Gen.  Vol.  VII,  p.  270,  1855,  TJ.  S. 

"The  face  of  a  banker's  circular  letter  of  credit,  found  in 
the  possession  of  an  American  dying  abroad,  is  not  assets  to  that 
amount  to  be  administered  by  the  consul;"  see  Atty.  Gen.  Vol. 
VII,  p.  542,  1855,  TJ.  S. 

Fees  of  consuls  for  the  care  of  estates;  see  Atty.  Gen.  Vol. 
VII,  p.  255-259,  1855,  TJ.  S. 

Nature  of  American  consul's  action  when  administering  an 
estate;  see  Sturg^  v.  Slacum,  1836,  TJ.  S. 

In  the  course  of  the  administration  of  an  estate  the  French 
consul  was  entitled  to  be  heard  by  the  court,  not  as  a  party  but 
informally,  as  the  national  agent  of  supposedly  interested  par- 
ties; see  Ferric  v.  The  Public  Administration,  1855,  TJ.  S. 

(C.)  Right  of  a  consul  to  administer  estates  by  application  of  treaty 
provisions 

Ofrrnan  consul's  right  to  administer  estate;  see  (The)  Gen- 
eral McPherson,  1900,  TJ.  S. 

724 


COMPENDIUM 

French  consul's  right  to  administer  an  estate;  see  (In  re) 
Lobrasciano's  Estate,  1902,  U.  S. 

Russian  consul's  right  to  become  administrator.  He  must 
give  a  bond  and  conduct  himself  as  any  administrator;  see  (In 
re)  Wyman,  1906,  IT.  S. 

Right  of  consul  to  take  charge  of  estate  in  accordance  with 
treaty  decided  by  international  arbitration;  see  (In  re)  Vergil, 
1867,  IT.  S. 

Consul  has  right  to  administer  estate;  see  (In  re)  Peterson's 
Will,  1906,  IT.  S. 

Court  refused  to  grant  Swedish  vice-consul  the  administra- 
tion of  estate  of  a  Swede;  see  Lanfear  v.  Ritchie,  1854,  U.  S. 

Consul  allowed  to  act  as  administrator  on  giving  usual  cer- 
tificate; see  (In  re)  Logiorato's  Estate,  1901,  U.  S. 

Consul  given  administration  by  surrogate's  court,  subject  to 
usual  condition.  Therefore,  as  surrogate's  court  does  not  ob- 
tain jurisdiction  over  an  estate  unless  minor  heirs  are  cited  to 
appear,  consul  cannot  take  administration  of  surrogate's  court 
unless  they  are  cited ;  see  (In  re)  Peterson's  Will,  1906,  U.  S. 

British  court  refused  to  issue  letters  of  administration  to 
the  American  consul;  see  Aspinwall  v.  The  Queen's  Proctor,  1839, 
6.  B. 

State  statutes  must  give  way  to  treaty  stipulations  and  the 
procedure  followed  must  conform  to  treaty  stipulations  as  much 
as  possible;  see  (In  re)  Fattosini,  1900,  TJ.  S. 

(D.)  Representation  of  absent  nationals  in  court   (see  also  Care  of 

Estates) 

See  Bello  Corrunes,  1821,  TJ.  S.;  (The)  Anne,  1818,  U.  S.; 
(The)  Antelope,  1825,  U.  S.;  (The)  London  Packet,  1815,  IT.  S.; 
Gernon  et  al  v.  Cochran,  1804,  XT.  S. ;  One  Hundred  and  Ninety- 
four  Shawls,  1848,  U.  S.;  (The)  Adolph,  1851,  U.  S.;  Rowe  v. 
Brig,  1818,  TJ.  S.;  Simpson  v.  Fogo,  1862,  G.  B.;  (The)  Divina 
Pastora,  1819,  TJ.  S. 

In  the  course  of  the  administration  of  an  estate  the  French 
consul  w^as  entitled  to  be  heard  by  the  court,  not  as  a  party  but 
informally,  as  the  national  agent  of  supposedly  interested  par- 
ties ;  see  Ferric  v.  The  Public  Administrator,  1855,  TJ.  S. 

"The  consul  appears  very  properly,  to  have  emploj'^ed  Mr. 
Mitcheson  as  proctor  and  advocate  in  the  cause,  but,  in  form,  as 
proctor  and  advocate  for  the  respondent,  and  not  of  the  consu- 
late;" see  Townshend  v.  The  Mina,  1868,  TJ.  S. 

British  consul  appears  for  original  o^^^lers  and  French  con- 
725 


CONSULAR  FUNCTIONS 

sul  claims  ship  as  a  valid  prize ;  see  McDonough  v.  Dannery,  1796, 
TJ.  S. 

German  consuls  authorized  by  article  8  of  treaty  to  repre- 
sent interests  of  German  citizens  in  court;  see  (The)  General 
McPherson,  1900,  U.  S. 

Before  property  can  be  delivered  to  a  consul  proof  of  the 
individual  proprietary  interest  must  be  accepted;  see  (The) 
Antelope,  1825,  U.  S. 

Representation  in  court  of  a  minor's  interest  by  the  con- 
sul ;  see  (In  re)  Peterson's  Will,  1906,  U.  S. 

The  acting  British  consul  filed  a  claim  in  behalf  of  absent 
owners  whom  he  thought  to  be  British;  see  (The)  Elizabeth, 
1862,  U.  S. 

A  consul  may  represent  the  interests  of  nationals  in  prize 
proceedings,  but  his  action  is  in  the  nature  of  surveillance;  see 
Atty.  Gen.  Vol.  VIII,  p.  101,  1856,  U.  S. 

"It  is  clear  that  he  (consul)  has  no  right,  by  any  rule  of 
public  law,  or  international  comity,  to  be  heard  in  the  case  by  the 
court,  otherwise  than  as  a  witness,  whether  enforced  or  volun- 
tary;" see  Atty.  Gen.  Vol.  VIII,  p.  470,  1855,  U.  S. 

French  consul  intervened  to  prevent  the  state  of  Louisiana 
levying  a  tax  of  10  per  cent,  on  an  estate  of  a  deceased  national 
contrary  to  treaty  provisions;  see  (Succession  of)  Dnfour,  1855, 
U.  S. 

Consul  may  intervene  in  behalf  of  citizens  who  are  absent 
but  interested  in  the  process;  see  Robson  v.  The  Huntress,  1851, 
U.  S. 

Consul  may  not  appear  for  an  infant,  party  to  the  pro- 
ceedings, so  as  to  give  the  surrogate's  court  jurisdiction  of  such 
party,  without  the  issuance  of  a  citation ;  see  (In  re)  Peterson's 
Will,  1906,  TJ.  S. 

ACTS   MOTIVED   BY   THE   INTEREST   OF   THE   SENDING   STATE 
RATHER  THAN  BY  NATIONALITY 

(A.)  Notarial  acts 

Consuls  not  required  to  perform  notarial  acts;  see  Atty.  Gen. 
Vol.  XII,  p.  1,  1866,  TJ.  S. 

Authentication  of  signature  of  notary  of  receiving  state  is 
not  a  notarial  act;  see  Atty.  Gen.  Vol.  XII,  p.  1,  1866,  TJ.  S. 

Consul  roplacfs  state  officials  for  the  performance  of  certain 
acts;  see  St.  John  v.  Croel,  1843,  TJ.  S. 

726 


COMPENDIUM 

An  notarial  verification  of  a  consul's  signature  to  an  af- 
fidavit is  not  required ;  see  (In  re)  Magee,  1885,  G.  B. 

It  is  not  the  duty  of  United  States  consuls  to  attest  the  sig- 
natures of  public  functionaries  of  the  receiving  state;  see  Stein 
V.  Stein's  Curator,  1836,  U.  S. 

United  States  consul  certified  to  the  official  character  of  of- 
ficials of  the  receiving  state  in  conformity  with  the  law  of  Louis- 
iana;  see  (Succession  of)  Wedderburn,  1841,  U.  S. 

A  British  consul's  authentication  of  an  affidavit  taken  before 
an  American  judge  is  a  notarial  act  which  he  is  empowered  by 
statute  to  perform;  see  (Trustee  of  Mrs.)  Barber,  1835,  G.  B. 

Court  declared  that  the  old  practice  allowing  the  swearing 
of  affidavits  before  notaries  was  still  in  force  in  a  case  where  no 
British  consul  was  within  150  miles  from  deponent's  residence; 
see  Cooke  v.  Wilby,  1884,  G.  B. 

It  may  be  that  the  laws  of  a  state  of  the  United  States  give 
validity  to  certain  services  performed  by  consuls;  see  Atty.  Gen. 
Vol.  XX,  p.  92,  1891,  TJ.  S. 

The  value  of  unofficial  services  customarily  performed  by 
consuls  depends  entirely  upon  the  fact  that  the  person  rendering 
them  is  a  consular  officer;  see  Atty.  Gen.  Vol.  XX,  p.  92,  1891, 
U.  S. 

"Any  consul"  in  statute  embraces  consuls  of  every  grade; 
see  Mott  v.  Smith,  1860,  U.  S. 

The  efficacy  of  the  act  may  be  due  to  the  faith  generally  re- 
posed in  consular  officers;  see  Atty.  Gen.  Vol.  XX,  p.  93,  1891, 
U.S. 

Consuls  have  no  general  power  of  administering  oaths, 
though  they  are  authorized  to  authenticate  depositions  made  in 
foreign  countries;  therefore  the  oath  required  of  an  applicant 
for  a  patent  should  not  be  taken  before  a  consul  but  by  a  com- 
petent magistrate  and  the  deposition  so  taken  should  be  verified 
by  the  official  certificate  of  authentication  of  the  consul;  see 
Atty.  Gen.  Vol.  Ill,  p.  532,  1840,  U.  S. 

Drawing  up  a  power  of  attorney,  bottomry  bond,  will,  or 
any  similar  service,  is  a  notarial,  not  a  consular  act;  see  Atty. 
Gen.  Vol.  VII,  p.  259,  1855,  U.  S. 

The  authentication  by  the  diplomatic  and  consular  officers 
of  the  United  States  of  the  copies  of  depositions,  warrants  and 
papers  to  be  received  as  evidence  of  criminality  to  secure  the 
extradition  is  sufficient ;  see  Rice  v.  Ames,  1900,  IT.  S. 

Administration  of  oaths  by  consul  according  to  the  pro- 
vision of  section  20  of  the  bankrupt  act  of  1898 ;  acknowledgment 

727 


CONSULAR  FUNCTIONS 

of  a  power  of  attorney  before  a  consul  is  sufficient  to  authorize 
the  proof  of  the  creditor's  claim  before  the  referee;  see  (In  re) 
Sugenheimer.  1899,  TJ.  S. 

A  vice  and  deputy  consul  authenticated  certificates  to  be 
used  in  a  petition  for  letters  of  administration  in  sending  state 
and  also  certified  himself  to  be  a  notary  public  of  the  United 
States.  Held:  that  this  was  not  such  an  authentication  as  the 
statute  section  952  Code  official  procedure  directed ;  see  Brown  v. 
Landon,  1883,  TJ.  S. 

The  Britisli  consul  received  an  acknowledgment,  of  which 
the  affidavit  verifying  the  same  had  been  sworn  to  before  the 
provisional  British  consul,  when  no  notary  or  other  official  be- 
fore whom  it  could  have  been  sworn  was  within  many  hundred 
miles;  see  (In  re)  Darling,  1845,  U.  S. 

(B.)  Authentication  of  signatures 

There  is  no  law  of  the  United  States  making  it  the  duty  of 
the  consul  to  acknowledge  and  authenticate  the  signature  or  the 
official  oliaracter  of  a  foreign  notary  public ;  see  Mosby  v.  United 
States,  1888,  U.  S. ;  Atty.  Gen.  Vol.  XI,  p.  1,  1854,  TJ.  S. 

Concerning  consular  certificate  regarding  the  official  char- 
acter of  a  foreign  register;  see  Catlett  v.  Pacific  Insurance  Co., 
1826,  U.  S. 

American  court  considered  that  an  American  consul's  cer- 
tificate of  the  signature  of  the  acalde,  who  himself  had  certified 
the  signature  and  official  character  of  the  Spanish  notaries,  ought 
to  be  received ;  see  Ferrers  v.  Bosel,  1821,  TJ.  S. 

(C.)  Authentication  of  translations 

Interpreters  are  always  sworn,  and  the  translation  by  the 
consul,  not  on  oath,  can  have  no  greater  validity  than  that  of 
any  other  respectable  man ;  see  Church  v.  Hubbard,  1804,  TJ.  S. 

(D.)  Authentication  of  the  laws  of  foreign  states 

Consuls  are  not  entrusted  with  the  power  of  authenticating 
the  laws  of  foreign  nations;  see  Church  v.  Hubbard,  1804,  TJ.  S. 

Case  in  which  consul  testified  as  to  the  maritime  law  of  his 
state;  see  Madonna  d'  Idra,  1811,  G.  B. 

(E.)  Acknowledgnnents  of  powers  of  attorney 

See  Stewart  v.  Linton,  1902,  TJ.  S.;  St.  John  v.  Croel,  1843, 

TJ.  S. 

728 


COMPENDIUM 

A  deputy  consul  can  take  the  acknowledgment  of  a  power 
of  attorney ;  see  Stewart  v.  Linton,  1902,  TJ.  S. 

The  administration  of  oaths  by  a  consul  according  to  the 
provisions  of  section  20  of  the  bankrupt  act  of  1898 ;  the  acknowl- 
edgment of  a  power  of  attorney  before  a  consul  was  sufficient  to 
authorize  the  proof  of  the  creditor's  claim  before  the  referee; 
see  (In  re)  Sugenheimer,  1899,  T7.  S. 

A  vice  and  deputy  consul  has  authority  to  acknowledge  a 
power  of  attorney;  "for  while  he  acted  in  that  capacity  he  was 
entitled  to  exercise  the  authority  vested  by  law  in  the  consul 
himself;"  see  Brown  v.  Landon,  1883,  TJ.  S. 

(F.)  Acknowledgment  of  deeds 

Competence  of  consul  to  take  an  acknowledgment  of  a  deed; 
see  Scanlon  v.  Wright,  1833,  U.  S. ;  St.  John  v.  Croel,  1843,  TJ.  S. 

Attestation  of  deeds  must  be  taken  within  consulate ;  see  Mc- 
Candless  v.  Yorkshire,  1897,  TJ.  S. 

"When  without  indication  of  place  where  taken,  an  acknowl- 
edgment is  not  presumed  to  have  been  taken  within  the  consular 
district;  see  McCandless  v.  Yorkshire,  1897,  TJ.  S. 

"A  consul  of  the  United  States  is  authorized  to  take  at  his 
consulate  an  acknowledgment  of  a  deed  to  realty  situated  in  this 
state,  and  his  certificate,  under  official  seal,  is  evidence  of  such 
acknowledgment;"  see  Long  v.  Powell,  1904,  TJ.  S. 

Certificates  of  acknowledgment,  if  they  purport  to  be  by 
the  one  authorized,  are  prima  facie  evidence  of  the  execution  of 
the  deed  as  well  as  of  the  official  character  of  the  persons  giving 
them.  No  aliunde  proof  of  signature  is  necessary;  see  Mott  v. 
Smith,  1860,  U.  S. 

(G.)  Affidavits 

See  Savage  v.  Birckhead,  1838,  TJ.  S. ;  Herman  v.  Herman, 
1825,  TJ.  S.;  Browne  v.  Palmer,  1902,  TJ.  S.;  St.  John  v.  Croel, 
1843,  TJ.  S. 

Value  of  affidavits  under  state  laws;  see  Marine  Wharf  v. 
Parsons,  1897,  TJ.  S. 

Case  in  which  state  court  passed  on  legality  of  an  oath  ad- 
ministered by  a  consul ;  see  Seidel  v.  Peschkaw,  1859,  TJ.  S. 

Consul  must  take  oath  prior  to  entry  upon  discharge  of 
duties  to  be  entitled  to  salary — This  oath  cannot  be  taken  before 
a  consul  of  another  state;  see  Otterhourg's  Case,  1869,  TJ.  S. 

Consul  is  a  representative  of  the  United  States  within  the 

729 


CONSULAR  FUNCTIONS 

meaning  of  the  act  of  1856  and  hence  has  authority  to  administer 
an  oath ;  see  Seidel  v.  Peschkaw,  1859,  TJ.  S. 

A  deputy  consul  can  take  the  acknowledgment  of  a  power 
of  attorney ;  see  Stewart  v.  Linton,  1902,  U.  S. 

Competence  of  commercial  agent  to  take  acknowledgments 
under  the  laws  of  Pennsylvania;  see  Moore  v.  Miller,  1892,  TT.  S. 

Consuls  are  not  competent  to  take  affidavits;  see  (In  re) 
Eady,  1838.  G.  B.;  (In  re  Anne)  Cooper,  1855,  G.  B. 

"When  showii  the  difficulty  of  getting  an  affidavit  sworn  be- 
fore the  magistrate  in  Russia,  the  British  court  allowed  one 
sworn  before  a  consul  to  be  enrolled ;  see  Davy  v.  Maltwood,  1841, 
G.  B. 

\Mien  by  German  law  the  British  consul  was  not  allowed  to 
administer  an  oath,  the  affidavit  could  be  sworn  before  a  German 
judge;  see  (In  re)  Fawcus,  1884,  G.  B. 

Court  admits  affidavits  taken  before  the  British  consul  in 
Russia,  because  magistrates  of  Russia  are  not  empowered  to  take 
affidavits ;  see  (In  re)  Daly,  1841,  G.  B. 

Gives  an  example  of  a  consul's  certificate,  and  a  certificate 
of  a  notary  public  of  the  receiving  state,  to  the  effect  that  the 
consul  is  entitled  to  administer  oaths;  see  (Ex  parte)  Hutchin- 
son, 1825,  TJ.  S. 

A  British  consul's  authentication  of  an  affidavit  taken  before 
an  American  judge  is  a  notarial  act,  which  he  is  empowered  by 
statute  to  perform;  see  (Trustee  of  Mrs.)  Barber,  1835,  G.  B. 

No  notarial  certificate  of  an  affidavit  made  before  the  consul 
is  required,  because  the  consul's  official  character  is  easily  capable 
of  proof ;  see  (Ex  parte)  Bird,  1852,  G.  B. 

Court  declared  that  the  old  practice  allowing  the  swearing 
of  affidavits  before  notaries  was  still  in  force,  in  a  case  where  no 
British  consul  was  within  150  miles;  see  Cooke  v.  Wilby,  1884, 
G.  B. 

The  British  fourt  received  an  acknowledgment,  of  which  the 
affidavit  verifying  the  same  had  been  sworn  before  the  provi- 
sional British  consul,  no  notary  or  other  official  before  whom  it 
could  have  been  sworn,  being  within  many  hundred  miles;  see 
(In  re)  Darling,  1845,  G.  B. 

Gives  the  rule  of  tlie  British  court  regarding  the  manner  of 
taking  affidavits  abroad;  see  Crattenden  v.  Bourbell,  1808,  G.  B. 

(H.)  Value  of  consul's  certificate 

What  the  consul's  certificate  is  competent  to  give;  see  Brown 
V.  The  Independence,  1836,  IT.  S. 

730 


COMPENDIUM 

Value  of  consul's  certificate  as  to  facts  relating  to  his  of- 
fice ;  see  Toler  v.  White,  1834,  TJ.  S. 

Value  of  consul's  certificate  as  to  facts;  see  Levy  v.  Burley, 
1836,  U.  S. 

Value  of  consul's  certificate,  as  proving  facts  and  being 
binding  on  the  parties;  see  Waldron  v.  Coombe,  1810,  G.  B. ;  St. 
John  V.  Croel,  1843,  TJ,  S. 

Value  of  consul's  certificate  relating  to  his  official  acts;  see 
Waldron  v.  Coombe,  1810,  U.  S. 

Value  of  consul's  certificate  to  facts  concerning  sailors;  see 
(The)  Coriolanus,  1839,  TJ.  S. 

Value  of  consul's  certificate  to  facts,  when  he  is  called  upon 
to  act  by  statute ;  see  Lamb  v.  Briard,  1848,  TJ.  S. 

The  Spanish  consul,  to  secure  the  arrest  of  a  deserter  under 
the  treaty,  must  produce  the  original  roll,  or  corresponding  doc- 
ument, containing  the  names  of  the  crew.  A  copy  certified  by 
the  consul  does  not  meet  the  requirements  of  the  treaty;  see 
Atty.  Gen.  Vol.  IX,  p.  97,  1857,  TJ.  S. 

An  assignment  of  a  patent  purporting  to  have  been  executed 
before  a  consul  general  is  sufficiently  proved  by  the  signature  of 
the  consul  general  and  the  seal  of  the  United  States  consulate 
general ;  see  Matheson  v.  Campbell,  1895,  TJ.  S. 

Value  of  a  passport  issued  by  a  consul  as  evidence;  see 
Foster  v.  Davis,  1822,  TJ.  S. 

Value  of  consul's  certificate  as  evidence  of  desertion;  see 
Lewis  V.  Jewhurst,  1866,  G.  B. 

"A  consul  of  the  United  States  is  authorized  to  take  at  his 
consulate  an  acknowledgment  of  a  deed  to  realty  situated  in  this 
state,  and  his  certificate,  under  official  seal,  is  evidence  of  such 
acknowledgment ; "  see  Long  v.  Powell,  1904,  TJ.  S. 

A  vice  and  deputy  consul  authenticated  certificates  to  be 
used  in  a  petition  for  letters  of  administration  in  sending  state 
and  also  certified  himself  to  be  a  notary  public  of  the  United 
States.  Held:  that  this  was  not  such  an  authentication  as  the 
statute  section  952  code  official  procedure  directed ;  see  Brown  v. 
Landon,  1883,  TJ.  S. 

A  passport  is  not  evidence  that  individual  has  been  in  for- 
eign country ;  see  Foster  v.  Davis,  1822,  TJ.  S. 

Authenticity  of  a  deposition  taken  by  an  officer  styling  him- 
self a  "consular  agent"  and  using  a  seal  containing  the  words 
United  States  Commercial  Agency;"  see  Schnnior  v.  Russell, 
1892,  U.  S. 

"If  the  attestation  of  the  signature,  and  right  of  the  person 

731 


CONSULAR  FUNCTIONS 

who  administered  the  oaths,  were  duly  certified  under  the  seal 
of  a  responsible  officer,  whose  appropriate  duty  it  was  to  give 
such  certificate,  it  might  be  received,  so  far  as  the  authentication 
goes,  as  prima  facie  evidence,  though  not  under  the  great  seal  of 
the  state;"  see  Stein  v.  Bowman,  1839,  IT.  S. 

Case  in  which  court  refused  to  accept  consul's  certificate  of 
role  of  ship,  even  though  boimd  by  treaty  to  give  faith  to  con- 
sul's certificate;  see  United  States  v.  Judge  Lawrence,  1795,  TJ.  S. 

Value  of  consul's  certificate;  see  Matthews  v.  Offley,  1837, 
U.  S. ;  Foster  v.  Davis,  1822,  IT.  S. ;  (The)  Alice,  1882,  U.  S. ;  (The) 
Coriolanns,  1839,  TJ.  S. 

Value  of  consul's  proceedings  as  evidence;  see  Graves  v. 
(The)  W.  F.  Babcock,  1897,  U.  S.;  St.  John  v.  Croel,  1843,  TJ.  S. 

Value  of  consul's  certificate  to  facts,  where  he  acts  under 
statute  to  discharge  a  sailor ;  see  (The)  Paul  Revere,  1882,  TJ.  S. 

Conclusiveness  of  consul's  declaration,  signed  to  the  master's 
statement  of  discharge;  see  (The)  Lilian  M.  Vigus,  1879,  IT.  S. 

Value  of  French  consul-general's  despatch  as  evidence;  see 
Gemon  v.  Cochran,  1804,  TJ.  S. 

Value  of  the  consul's  certificate  declaring  what  is  the  law 
of  shipping  of  his  state;  see  Madonna  d'  Idra,  1811,  G.  B. 

Nature  of  consul's  act  in  discharging  seamen,  and  the  value 
of  his  certificate;  see  Campbell  v.  Steamer  TJncle  Sam,  1856,  TJ. 
S. ;  Hutchinson  v.  Coombs,  1825,  TJ.  S. ;  Jenks  v.  Cox,  1872,  TJ.  S. 

Sound  List  and  Petersburg  List  are  documents  transmitted 
by  British  consuls,  which  state  the  arrival  of  different  ships. 
These  lists  cannot  be  received  as  evidence,  as  they  are  mere  rep- 
resentations;  see  Roberts  v.  Eddington,  1801,  G.  B. 

Lists  of  the  arrival  of  ships,  sent  home  by  consuls,  are  mere 
representations  and  cannot  be  received  as  evidence;  see  Roberts 
V.  Eddington,  1801,  G.  B. 

Authfntication  of  extradition  proceedings;  see  (In  re) 
Herres,  1887,  TJ.  S. 

(I.)  Taking  depositions 

Action  of  consul  concerning  depositions;  see  Savage  v. 
Birckhead,  1838,  TJ.  S.;  Semmens  v.  Walters,  1882,  TJ.  S.;  Adams 
V.  State,  1885,  TJ.  S. 

Authority  of  consul  to  take  deposition  de  bene  esse;  see 
Bischoffscheim  v.  Baltzer,  1882,  TJ.  S.;  (The)  Alexandria,  1906, 
TJ.  S. 

Value  of  affidavits  to  a  deposition  taken  before  the  com- 

732 


COMPENDIUM 

mercial  and  naval  agent  of  the  United  States;  see  Welsh  v.  Hill, 
1807,  V.  S. 

The  court  received  the  return  of  a  commission,  executed  by 
a  vice-consul  as  commissioner  named  by  a  court ;  see  Stiff  v.  Nu- 
gent, 1843,  U.  S. 

Consuls  have  no  general  power  of  administering  oaths, 
though  they  are  authorized  to  authenticate  depositions  made  in 
foreign  countries;  therefore  the  oath  required  of  an  applicant 
for  a  patent  should  not  be  taken  before  a  consul,  but  by  a  com- 
petent magistrate,  and  the  deposition  so  taken  should  be  verified 
by  the  official  certificate  of  authentication  of  the  consul;  see 
Atty.  Gen.  Vol.  Ill,  p.  532,  1840,  TJ.  S. 

Conditions  covering  the  issuance  of  letters  rogatory  and 
open  commissions ;  see  Atty.  Gen,  Vol.  XXIV,  p.  70,  1902,  U.  S. 

Spanish  consuls  in  Great  Britain  are  instructed  to  obtain  the 
testimony  of  voluntary  witnesses  by  proceedings  before  a  magis- 
trate, but  to  attend  to  citations  themselves;  see  Atty.  Gen.  Vol. 
XXIII,  p.  114,  1900,  U.  S. 

Court  declares  that  it  has  no  authority  to  compel  witnesses 
to  testify  before  Spanish  consul;  see  Spanish  Consul's  Petition, 
1867,  U.  S. 

All  depositions  must  be  taken  under  commissions;  see  Stein 
V.  Bowman,  1839,  U.  S. 

"It  cannot  be  conceived  that  the  general  government  sends 
representatives  abroad  for  the  purpose  of  acting  as  the  execu- 
tive officers  of  the  different  state  courts  in  the  Union.  It  is  true 
that  those  representatives  sometimes  act  as  ministerial  officers  of 
such  courts,  as  for  instance,  to  procure  testimony,  and  the  like; 
but  they  do  so  with  the  special  authority  of  state  legislation,  pro- 
viding distinctly  for  such  cases;"  see  Interdiction  of  Joseph 
Dumas,  1880,  U.  S. 

Authenticity  of  a  deposition  taken  by  an  officer  styling  him- 
self a  "consular  agent"  and  using  a  seal  containing  the  words 
"United  States  Commercial  Agency;"  see  Schunior  v.  Russell, 
1892,  TJ.  S. 

(J.)  Administering  oaths  (see  Depositions;  Affidavits) 

Consuls  have  no  general  power  of  administering  oaths, 
though  they  are  authorized  to  authenticate  depositions  made  in 
foreign  countries.  Therefore  the  oath  required  of  an  applicant  for 
a  patent  should  not  be  taken  before  a  consul  but  by  a  competent 
magistrate  and  the  deposition  so  taken  should  be  verified  by  the 

733 


CONSULAR  FUNCTIONS 

official  certificate  of  authentication  of  the  consul;  see  Atty.  Gen. 
Vol.  ni.  p.  532,  1840,  TJ.  S. 

REPRESENTATIVE  OR  POLITICAL  FUNCTIONS 

Consul  referred  to  as  representative  of  his  country;  see 
Herzogin  Marie,  1861,  G.  B.;  Fry  v.  Cook,  1876,  TJ.  S.;  Davis  v. 
Packard.  1833,  TJ.  S.;  Bucker  v.  Klorkgeter,  1849,  TJ.  S. 

Consuls  have  no  authority  to  grant  licenses  exempting  ves- 
sels from  capture;  see  (The)  Hope,  1813,  G.  B.;  Benito  Estenger, 
1900.  TJ.  S. ;  Rogers  v.  Amado,  1847,  TJ.  S. 

Lord  Stowell  does  not  declare  whether  the  consul  or  the  min- 
ister was  referred  to  as  representative  in  speaking  of  the  case  of 
(The)  Courtney;  see  (The)  Wilhelm  Frederick,  1823,  G.  B. 

Consul's  fimctions  "are  purely  of  a  commercial  nature,  and 
such  as  properly  belong  to  a  consul,  those  of  advice  and  inter- 
cession and  there  is  no  one  function  of  state  purposed  to  be  per- 
formed by  him  as  representing  the  sovereign  of  his  state;"  see 
Viveash  v.  Becker,  1814,  G.  B. 

Consuls  are  not  public  ministers  and  are  not  invested  with 
any  representative  character;  see  Atty.  Gen.  Vol.  I,  p.  42,  1794, 
TJ.  S. 

Mexican  consul  makes  complaint  under  oath  to  secure  extra- 
dition— His  official  character  must  be  taken  as  sufficient  evidence 
of  his  authority,  and  as  the  government  he  represented  was  the 
real  party  interested  in  resisting  the  discharge,  the  appeal  was 
properly  prosecuted  by  him  in  its  behalf;  see  Ornelas  v.  Rniz, 
1895,  TJ.  S. 

(A.)  Observance  of  treaties  (see  Treaties  under  Imraimities) 

(B.)  Consular  reports 

Sound  Lists  and  Petersburg  List  are  documents  transmitted 
by  British  consuls  which  state  the  arrival  of  different  ships. 
These  lists  cannot  be  received  as  evidence  as  they  are  mere  rep- 
resentations;  see  Roberts  v.  Edding^ton,  1801,  G.  B. 

(C.)  Representation  of  sending  state  in  court 

Consul  may  not  represent  his  sovereign  nor  vindicate  his 
prerogative  without  special  authority;  see  (The)  Anne,  1818, 
TJ.  S. 

A  consul  cannot  intervene  for  his  sovereign  when  said  sov- 
ereign has  a  minister  or  ambassador  resident  in  the  country;  see 
Eobson  7.  (The)  Huntress,  1851,  TJ.  S. 

734 


COMPENDIUM 

Consul  has  no  right  to  represent  the  personality  of  his  sov- 
ereign or  his  prerogatives  but  may  represent  the  interests  of  any 
individual  or  a  mass  of  individuals  in  the  receiving  state;  see 
Von  Thodorovich  v.  Franz  Josef,  1907,  U.  S. 

Consul  of  Greece  appealed  to  British  court  to  enforce  the 
decision  of  a  Greek  court  against  a  Greek  ship ;  see  (The)  Evan- 
gelistria,  1876,  G.  B. 

Intervention  of  consul  to  represent  his  government's  in- 
terest; see  (The)  Conserva,  1889,  TJ.  S. 

British  and  French  consuls  represent  claims  for  the  posses- 
sion of  a  prize ;  see  McDonough  v.  Dannery,  1796,  TJ.  S. 

Protest  of  consul  against  illegality  of  a  prize  condemnation 
heeded  by  court ;  see  (The)  Betty  Cathcart,  1799,  G.  B. 

Representation  of  government  in  prize  cases;  see  Gernon  v. 
Cochran,  1804,  TJ.  S. 

Consul  presents  claim  of  government  for  violation  of  neu- 
trality by  prize  proceedings ;  see  Vrow  Anna  Catharina,  1803,  G.  B. 

Dutch  consul  protest  to  Portuguese  government  against 
British  violation  of  Portugese  neutrality;  see  Vrow  Anna  Cath- 
arina, 1803,  G.  B. 

Among  consul's  functions  to  see  that  territory  of  receiving 
state  is  not  made  a  base  for  fitting  out  expeditions  against  his 
government;  see  (The)  Conserva,  1889,  TJ.  S. 

Consul  of  Oldenbuig  w  s  charged  with  the  duty  of  looking 
after  prizes  and  nationals  det?med  as  prisoners  of  war  and  mak- 
ing the  necessary  intercfssioi  before  the  proper  tribunals  to 
procure  them  their  liberty ;  see  Viveash  v.  Becker,  1814,  G.  B. 

(D.)  Arrest  of  deserters 

See  United  States  v.  Judge  lawrence,  1795,  TJ.  S.;  United 
States  v.  Motherwell,  1900,  U.  S.;  Atty.  Gen.  Vol.  XII,  p.  465, 
1868,  U.  S. 

Declares  that  court  has  always  helped  masters  to  recover  de- 
serters ;  see  Willendson  v.  The  Forsoket,  1801,  U.  S. 

The  Spanish  consul  to  secure  the  arrest  of  a  deserter  under 
the  treaty  must  produce  the  original  roll  or  corresponding  docu- 
ment containing  the  names  of  the  crew.  A  copy  certified  by  the 
consul  does  not  meet  the  requirements  of  the  treaty;  see  Atty. 
Gen.  Vol.  IX,  p.  97,  1857,  U.  S. 

Case  in  which  deserter  was  forcibly  taken  from  the  custody 
of  the  United  States  marshal  while  the  latter  was,  upon  the 
written  order  of  the  consul,  delivering  him  to  the  master  of  the 
vessel — Court  held  that  the  law  required  the  delivery  to  the  con- 

735 


CONSULAR  FUNCTIONS 

sul  and  that  acting  under  the  direction  of  the  consul  the  mar- 
shal ^vas  not  in  the  performance  of  a  duty  enjoined  by  law. 
Honee  the  defendants  could  not  be  punished  for  obstructing  an 
officer  in  the  performance  of  a  duty  enjoined  by  law;  see  United 
States  V.  Kelley.  1901,  U.  S. 

Question  whether  alleged  deserters  should  be  given  up  to 
German  consul  by  reason  of  the  application  of  article  14  of  the 
Convention  of  1871  with  Germany,  should  be  submitted  to  the 
projier  court  for  a  judicial  determination;  see  Atty.  Gen.  Vol. 
XXV.  p.  77,  1903,  TJ.  S. 

(E.)  Extraditions 

See  Benson  v.  McMahon,  1887,  TJ.  S.;  (In  re)  Grin,  1901, 
U.  S.;  (In  re)  Adutt,  1893,  U.  S.;  (In  re)  Kaine,  1852,  TJ.  S. 

Representative  character  of  consul  when  asking  for  the  de- 
liver}' of  prisoners  to  be  transported  to  the  sending  state  for 
trial ;  see  Atty.  Gen.  Vol.  VIII,  p.  76,  1856,  TJ.  S. 

Consul's  duty  in  relation  to  extradition;  see  Atty.  Gen.  Vol. 
VIII,  p.  84,  1856,  TJ.  S. 

Consul's  action  in  securing  the  custody  of  a  seaman  who 
had  committed  a  crime  for  transportation  to  America  for  trial; 
see  Atty.  Gen.  Vol.  VII,  p.  722,  1856,  U.  S. 

"No  evidence  was  required  that  the  Eussian  consul  had  au- 
thority to  make  the  complaint;"  see  Grin  v.  Shine,  1902,  TJ.  S. 

Complaint  under  oath  of  Belgiun  consul-general,  although 
based  entirely  upon  the  strength  of  depositions  and  telegrams 
from  sending  state,  is  sufficient  to  warrant  holding  prisoner;  see 
(Ex  parte  Henry)  Van  Hoven,  1876,  TJ.  S. 

Complaint  in  extradition  case  verified  by  a  foreign  consul  is 
sufficient  if  made  officially  although  not  based  on  personal  knowl- 
edge ;  see  (In  re  Francois)  Farez,  1870,  TJ.  S. 

Mexican  consul  makes  complaint  under  oath  to  secure  extra- 
dition— His  official  character  must  be  taken  as  sufficient  evidence 
of  his  authority,  and  as  the  government  he  represented  was  the 
real  party  interested  in  resisting  the  discharge,  the  appeal  was 
properly  prosecuted  by  him  in  its  behalf;  see  Ornelas  v.  Ruiz, 
1895,  TJ.  S. 

Swiss  consul  asks  for  warrant  for  delivery  of  Roth  to  the 
authorities  of  the  Swi.ss  Confederation;  see  (In  re)  Roth,  1883, 
TJ.  S. 

736 


COMPENDIUM 
(F.)  Exercise  of  diplomatic  functions 

See  (In  re)  Baiz,  1899,  U.  S. 

Consul's  functions  "are  purely  of  a  commercial  nature,  and 
such  as  properly  belong  to  a  consul,  those  of  advice  and  inter- 
cession and  there  is  no  one  function  of  state  purposed  to  be  per- 
formed by  him  as  representing  the  sovereign  of  his  state;"  see 
Viveash  v.  Becker,  1814,  G.  B. 

' '  The  United  States  may,  with  the  consent  of  the  other  party, 
superadd  to  the  regular  duties  of  consul  any  of  those  of  min- 
isters;" see  Atty.  Gen.  Vol.  VII,  p.  343,  1855,  TJ.  S. 

Consul  made  charge  d'affaires  becomes  invested  with  full 
diplomatic  privileges,  "yet  becomes  so  invested  as  cJiarye  d' 
affaires,  not  as  consul,  and  the  fact  of  such  casual  duplicature  of 
functions  does  not  change  the  legal  status  of  consul,  whether  they 
be  regarded  through  the  eye  of  the  law  of  nations  or  that  of  the 
United  States;"  see  Atty.  Gen.  Vol.  VII,  p.  345,  1855,  U.  S. 

"A  correspondence  ensued  between  the  captain  general  of 
Cuba  and  Mr.  Trist,  (United  States  consul),  which  terminated 
in  a  friendly  disposition  of  the  question,  whether  the  seizure  of 
the  vessel  in  the  port  of  Havana  was  a  violation  of  the  jurisdic- 
tional rights  of  Spain;"  see  Atty.  Gen.  Vol.  Ill,  p.  406,  1839 
TJ.  S. 

When  the  American  consul  suspected  the  papers  of  a  ship 
to  be  fraudulent  he  called  upon  a  vessel  of  war  of  his  nation  to 
seize  it;  see  Atty.  Gen.  Vol.  Ill,  p.  405,  1839,  U.  S. 

By  the  act  of  1856  a  consul  cannot  exercise  diplomatic  func- 
tions without  authorization  from  the  president;  see  Otterbourg's 
Case,  1869,  TJ.  S. 

"By  some  governments  (a  consul)  is  invested — in  the  ab- 
sence of  a  minister  or  ambassador  to  represent  them — with  dip- 
lomatic powers;"  see  Oscanyan  v.  Arms  Company,  1880,  TJ.  S. 

ADMINISTRATIVE  FUNCTIONS 

Applications  for  patents  must  be  sworn  to;  see  Atty.  Gen. 
Vol.  XX,  p.  458,  1892,  TJ.  S. 

Duties  of  consul  in  sealing  cars;  see  Atty.  Gen.  Vol.  XX,  p. 
31,  1891,  TJ.  S. 

An  assignment  of  a  patent  purporting  to  have  been  executed 
before  a  consul  general  is  sufficiently  proved  by  the  signature  of 
the  consul  general  and  the  seal  of  the  United  States  consulate 
general;  see  Matheson  v.  Campbell,  1895,  TJ.  S. 

737 


CONSULAR  FUNCTIONS 
(A.)  Care  of  shipping 

Consul  is  competent  to  appoint  surveyors  to  make  surveys  of 
vessels  and  sales ;  see  Atty.  Gen.  Vol.  VI,  p.  617,  1854,  IT.  S. 

Authority  of  consul  to  dispose  of  the  effects  of  deserters;  see 
Atty.  Gen.  Vol.  XIV,  p.  520,  1875,  U.  S. 

Consul  is  in  some  respects  the  agent  of  the  master  in  cases 
where  he  presides  over  the  auction  of  the  damaged  goods;  see 
Waldron  v.  Coombe,  1810,  G.  B. 

Fees  for  receiving  and  delivering  vessels  registers  prescribed 
by  regulation  of  the  president;  see  Atty.  Gen.  Vol.  XI,  p.  73, 
1866,  V.  S. 

For  copy  of  consul's  certificate  annexed  to  certain  affidavits 
in  a  suit  for  wages;  see  Kammerhevie  Rosenkrants,  1822,  G.  B. 

Protest  against  capture  in  neutral  waters;  see  Vrow  Anna 
Catharina,  1803,  G.  B. 

That  the  consul's  care  of  distressed  seamen  and  their  re- 
patriation is  primarily  based  upon  the  interests  of  the  mercantile 
marine  is  instanced  b}^  the  opinion  of  the  attorney  general;  see 
Atty.  Gen.  Vol.  Ill,  p.  683,  1841,  U.  S. 

A  consul  in  China  is  entitled  to  fees  collected  for  shipping 
and  discharging  seamen  on  foreign  built  vessel  sailing  under  the 
American  flag ;  see  Goldsborough  v.  United  States,  1889,  IT.  S. 

Case  involving  the  consideration  of  the  action  of  the  Rus- 
sian consul  at  Constantinople,  who  had  appointed  a  curator  of 
a  wreck  and  three  persons  to  assess  expenses;  see  Dent  v.  Smith, 
1869,  G.  B. 

Official  character  of  consul's  acts  when  ordering  survey  of 
vessel  and  sale  at  auction — Like  a  trustee  he  is  inhibited  from 
acquiring  an  interest  in  the  property;  see  Riley  v.  The  Obeli 
Mitchell.  1861,  U.  S. 

"The  consul  appears  very  properly,  to  have  employed  Mr. 
Mitcheson  as  proctor  and  advocate  in  the  cause,  but,  in  form,  as 
proctor  and  advocate  for  the  respondent,  and  not  of  the  consu- 
late;" see  Townshend  v.  The  Mina,  1868,  IT.  S. 

(B.)  Care  of  seamen 

See  Snow  v.  Wope,  1855,  TJ.  S.;  (The)  Coriolanus,  1839,  IT.  S. 

Consul  often  in  league  with  captain  against  seamen;  see 
(The)  Coriolanus,  1839,  TJ.  S. 

The  attorney-general  declared  that  in  a  judicial  case  in  which 
there  was  a  conflict  between  the  department  of  state  and  the 
district  court  as  to  the  meaning  of  the  word  "destitute"  contain- 

738 


COMPENDIUM 

ed  in  the  statute  it  should  be  settled  by  the  courts;  see  Atty. 
Gen.  Vol.  XIX,  p.  25,  1887,  U.  S. 

Consul's  action  in  caring  for  shipwrecked  sailors.  Case  in 
which  he  obtains  wages  from  master  to  provide  for  wants  of 
crew ;  see  Atty.  Gen.  Vol.  XIX,  p.  22,  1887,  XT.  S. 

Statutes  for  care  of  destitute  seamen  do  not  apply  to  Fili- 
pinos; see  Atty.  Gen.  Vol.  XXIII,  p.  402,  1901,  U.  S. 

That  the  consul's  care  of  distressed  seamen  and  their  re- 
patriation is  primarily  based  upon  the  interests  of  the  mercantile 
marine  is  instanced  by  the  opinion  of  the  attorney  general;  see 
Atty.  Gen.  Vol.  Ill,  p.  683,  1841,  U.  S. 

Case  where  consul's  action  in  imprisoning  seamen  is  con- 
demned— consul  being,  in  his  official  character,  intrusted  with 
extending  his  protection  to  them;  see  Shorey  v.  Rennell,  1858, 
V.  S. 

Right  of  seamen  to  see  the  consul;  see  Morris  v.  Cornell, 
1843,  U.  S. 

Value  of  consular  certificate  as  to  facts  relating  to  mas- 
ter's refusal  to  take  sailors  on  board;  see  Matthews  v.  Offley,  1837, 
IT.  S.;  also  (Certificates  of  Facts  nnder  heading  of  Judicial  Func- 
tions). 

Repatriation  of  a  minor  sailor;  see  Luscom  v.  Osgood,  1844, 
TI.  S. 

(C.)  Passports 

Value  of  a  passport  issued  by  a  consul  as  evidence ;  see  Fos- 
ter V.  Davis,  1822,  U.  S. 

A  passport  is  not  evidence  that  individual  has  been  in  a  for- 
eign country ;  see  Foster  v.  Davis,  1822,  U.  S. 

JUDICIAL  FUNCTIONS 

Origin  and  basis  for  consul's  exterritorial  rights  in  certain 
countries ;  see  Atty.  Gen.  Vol.  VII,  p.  346-349,  1855,  U.  S. 

As  between  citizens  and  subjects  of  sending  state  consul 
"may  exercise  judicial  powers;"  see  Oscanyan  v.  Arms  Com- 
pany, 1880,  U.  S. 

(A.)  Consul's  jurisdiction  over  crew  (see  also  Care  of  Shipping) 

Extent  to  which  the  consul's  action  in  declaring  the  entries 
of  desertion,  made  by  master,  to  be  in  accordance  with  the  law 
of  the  sending  state  is  conclusive;  see  (The)  Lilian  M.  Vigus, 
1879,  U.  S. 

739 


CONSULAR  FUNCTIONS 

Authority  of  consuls  in  eases  of  deserters;  see  (The)  Lilian 
M.  Vigus,  1879,  TJ.  S. ;  Atty.  Gen.  Vol.  XII,  p.  465,  1868,  U.  S. 

Right  of  seamen  to  see  consul;  see  Morris  v.  Cornell,  1843, 
TJ.  S. 

Consul  can  determine  who  constitutes  members  of  crew  as 
between  citizens  of  sending  state ;  see  Atty.  Gen.  Vol.  XI,  p.  512, 
1866,  TJ.  S. 

Duty  of  a  consul  to  return  a  minor  stowaway  who  became  a 
sailor ;  see  Luscom  v.  Osgood,  1844,  TJ.  S. 

Advice  of  consul  does  not  relieve  master  of  responsibility  for 
illegal  act ;  see  Wilson  v.  (The)  Mary,  1828,  TJ.  S. 

AVhere  consul  thrust  sailor  into  jail  to  please  captain,  latter 
was  not  relieved  of  responsibility ;  see  Magee  v.  (The)  Mose,  1831, 
U.  S. 

AYhere  consul  secured  soldiers  to  help  master,  libellant  was 
awarded  damages  against  master;  see  Gardner  v.  Bibbins,  1833, 
U.  S. 

Authority  of  consuls  regarding  imprisonment  of  members  of 
crew;  see  (The)  William  Harris,  1837,  TJ.  S.;  Tingle  v.  Tucker, 
1849,  TJ.  S.;  Chester  v.  Benner,  1871,  TJ.  S.;  (The)  Coriolanus,  1839, 
TJ.  S.;  Jordan  v.  Williams,  1851,  TJ.  S. 

Consul's  acts  in  disposing  of  wages;  see  Hindsgaul  v.  The 
Lyman  D.  Foster,  1898,  TJ.  S. 

Retention  of  wages;  see  Graves  v.  The  W.  F.  Babcock,  1897, 
U.  S. 

Consul  cannot  discharge  seamen  in  cases  of  disability  aris- 
ing from  wounds  contracted  in  the  service  of  the  ship;  see  Gallon 
V.  Williams,  1871,  TJ.  S. 

Consul's  action  in  discharging  seamen;  see  Coffin  v.  Weld, 
1871,  TJ.  S. 

Duties  and  responsibility  of  consul  in  discharge  of  seamen; 
see  Tingle  v.  Tucker,  1849,  TJ.  S. 

Authority  of  consul  in  discharging  seamen  and  value  of  his 
certificate  of  the  conditions  imder  which  it  was  done;  see  Lamb 
V.  Briard,  1848,  TJ.  S. 

Nature  of  consul's  act  in  discharging  seamen  and  the  value 
of  his  certificate;  see  Campbell  v.  Steamer  TJncle  Sam,  1856,  TJ.  S. ; 
Hutchinson  v.  Coombs,  1825,  TJ.  S.;  Jenks  v.  Cox,  1872,  TJ.  S. 

Gives  copy  of  consul's  certificate  in  the  case  of  discharge 
of  seamen ;  see  (The)  Paul  Revere,  1882,  TJ.  S. 

Jurisdiction  of  consuls  in  case  of  crime  committed  on  board 
of  a  ship  of  the  sending  state;  see  Atty.  Gen.  Vol.  VIII,  p.  382, 
1857,  TJ.  S. 

740 


COMPENDIUM 

The  discretionary  power  given  by  statute  to  consuls  regard- 
ing the  discharge  of  seamen  is  not  reviewable  except  by  some 
competent  court;  see  Atty.  Gen.  Vol.  XVI,  p.  268,  1879,  U.  S. 

The  jurisdiction  of  consuls  over  seamen  is  reciprocally  grant- 
ed because  of  the  advantage  to  each  coimtry ;  see  Norberg  v.  Hill- 
greu,  1846,  IT.  S. 

When  the  shipmaster  is  required  to  deposit  the  ship's  reg- 
ister with  the  consul  and  the  object  of  this  deposit;  see  Atty. 
Gen.  Vol.  IV,  p.  390,  1845,  U.  S. 

Discussion  of  the  obligations  of  American  ships  to  bring 
home  destitute  seamen ;  see  Atty.  Gen.  Vol.  IV,  p.  185,  1843,  IT.  S. 

French  consul's  jurisdiction  limited  to  disputes  on  board 
ship  not  disturbing  the  police  of  the  port;  see  Atty.  Gen.  Vol. 
II,  p.  379,  1830,  U.  S. 

The  act  of  1803  regarding  the  deposit  of  seamen's  wages  in 
the  case  of  discharge  abroad  applies  to  a  sailor  too  sick  to  con- 
tinue the  voyage ;  see  Atty.  Gen.  Vol.  I,  p.  594,  1820,  TJ.  S. 

The  master  of  an  American  vessel,  sold  in  a  foreign  country 
on  account  of  being  stranded  is  not  obliged  to  deposit  three 
months'  wages  for  crew  with  the  consul;  see  Atty.  Gen.  Vol.  I, 
p.  148,  1797,  U.  S. 

Consul's  action  in  caring  for  shipwrecked  sailors.  Case  in 
which  he  obtains  wages  from  master  to  provide  for  wants  of 
crew;  see  Atty.  Gen.  Vol.  XIX,  p.  22,  1887,  U.  S. 

Case  in  which  the  district  court  of  California  decided  that 
sailors  were  destitute  and  made  owners  of  ship  repay  as  wages 
money  which  had  been  paid  to  consul  to  furnish  sailors  with  ne- 
cessities; see  Atty.  Gen.  Vol.  XIX,  p.  24,  1887,  IT.  S. 

"When  a  consul  intervenes  in  a  controversy  between  master 
and  seamen,  by  mutual  consent  of  the  disputants,  he  acts  as  an 
arbitrator  and  not  as  consul;"  see  Atty.  Gen.  Vol.  XXI,  p.  201, 
1895,  U.  S. 

The  master  of  a  ship  has  no  power  to  discharge  crew  on  his 
mere  authority  without  the  intervention  of  a  consul;  see  Atty. 
Gen.  Vol.  VII,  p.  349,  1855,  TJ.  S. 

"I  am  of  the  opinion  that  if  Dowd  was  discharged  by  the 
consul-general  because  of  unusual  or  cruel  treatment,  he  is  en- 
titled to  the  one  month's  extra  wages  allowed  by  statute,  and  that 
some  reasonable  discretion  is  to  be  permitted  to  the  consular  au- 
thority in  determining  this  extra  allowance  in  reference  to  ac- 
tual or  anticipated  ill-treatment  and  a  discharge  consequent 
thereon;"  see  Atty.  Gen.  Vol.  XXII,  p.  212,  1898,  U.  S. 

741 


CONSULAR  FUNCTIONS 

Effect  of  the  act  of.  1855  regarding  the  repatriation  of  sea- 
men ;  sec  Atty.  Gen.  Vol.  VII,  p.  268,  1855,  U.  S. 

"Wlion  shipmasters  are  required  to  deposit  register  with  con- 
suls; see  Atty.  Gen.  Vol.  V,  p.  161,  1849,  U.  S. 

"The  consul's  certificate,  obtained  in  the  absence  of  the 
seaman,  was  not  conclusive  evidence  of  the  fact  of  desertion;" 
see  Lewis  v.  Jewhurst,  1866,  G.  B. 

Case  in  Avhich  a  consul  does  an  injustice  to  seaman  in  dis- 
charging him — consul's  decision  ordinarily  entitled  to  full  cred- 
ence but  not  when  there  was,  according  to  the  testimony,  no  hear- 
ing no  judgment  and  no  record ;  see  (The)  Sachem,  1894,  U.  S. 

Court  refused  to  take  jurisdiction  of  case  which  consul  had 
passed  upon ;  and  discussed  occasions  when  jurisdiction  will  be 
taken ;  see  Townshend  v.  The  Mina,  1868,  V.  S. 

Consul  advised  master  to  take  back  sailor  who  had  been  ab- 
sent and  when  master  refused  certified  that  there  was,  in  his  be- 
lief, sufficient  cause  for  a  libel  for  wages  and  damages;  see 
Hayes  v.  J.  J.  Wickwire,  1870,  TJ.  S. 

(B.)  Conditions  in  which  courts  of  the  receiving  state  will  take  jur- 
isdiction over  disputes  between  seamen  and  effect  of  consul's 
protest  against  the  exercise  of  such  jurisdiction 

Requisites  for  courts  taking  jurisdiction;  see  (The)  Infanta, 
1848,  U.  S. 

Effect  of  consul's  opposition  to  the  exercise  of  jurisdictions 
by  courts  of  receiving  state ;  see  (The)  Havana,  1858,  U.  S. 

Whether  the  consent  of  ambassador  or  consul-general  is  nec- 
essary to  allow  court  to  take  jurisdiction;"  see  (The)  Wilhelm 
Frederick,  1823,  G.  B. 

Jurisdiction  granted  by  treaty  to  consuls  is  intended  to  fur- 
nish a  proper  remedy  and  admiralty  court  may,  in  its  discretion, 
take  jurisdiction  when  no  consul  of  the  sending  state  is  within 
the  district  over  which  court  exercises  jurisdiction;  see  (The) 
Amalia,  1880,  TJ.  S. 

British  court  lias  discretion  whether  it  will  exercise  juris- 
diction; see  (The)  Nina,  1867,  G.  B.;  (The)  Leon  XIII,  1883,  G.  B. 

Argument  a  contrairo  might  be  made  that  the  consent  of  con- 
sul is  necessary;  see  (The)  Wilhelm  Frederick,  1823,  G.  B. 

Court  has  discretion  wlielher  it  will  exercise  jurisdiction 
and  consul's  protest  cannot  act  as  veto;  see  (The)  Leon  XIII, 
1883,  G.  B.;  Weiberg  v.  (The)  St.  Oloff,  1790,  IT.  S.;  Bernard  v. 
Greene,  1874,  U.  S.;  (The)  Nina,  1867,  G.  B.;  (The)  Belgenland, 

742 


COMPENDIUM 

1884,  U.  S. ;  Bucker  v.  Klorkgeter,  1849,  U.  S. ;  (The)  Topsy,  1890, 
U.  S. 

American  court  will  take  jurisdiction  when  an  American 
citizen  is  one  of  the  parties;  see  (The)  Alnwick,  1904,  TJ.  S.;  The 
Falls  of  Keltie,  1902,  U.  S. ;  (The)  Neck,  1905,  U.  S. 

Conditions  under  which  court  will  take  jurisdiction  over 
suit  of  an  alien  for  wages;  see  Davis  v.  Leslie,  1848,  TJ.  S. 

Act  imposing  penalty  for  pre-payment  of  sailor's  wages  ap- 
plies to  foreign  ships  and  foreign  sailors;  see  Patterson  v.  Bark 
Eudora,  1903,  TJ.  S.;  (The)  Troop,  1902,  TJ.  S.;  (The)  Alnwick, 
1904,  U.  S.;  (The)  Kestor,  1901,  U.  S. 

Protest  of  foreign  consul  prevented  courts  taking  jurisdic- 
tion in  the  case  of  the  breakup  of  a  voyage ;  see  Orr  v.  (The)  Ach- 
sah,  1849,  U.  S. 

United  States  court  took  jurisdiction  of  libel  for  wages 
where  crew  desert  after  British  second  vice-consul  had  ordered 
them  to  go  to  work;  see  (The)  Lilian  M.  Vigus,  1879,  TJ.  S. 

Necessity  of  obtaining  the  consul's  assent  before  court  will 
take  jurisdiction  of  certain  suits ;  see  (The)  Adolph,  1835,  Gr.  B. 

Court  will  not  take  jurisdiction  against  consul's  protest  in 
dispute  for  seamen's  wages;  see  Becherdass  Amhaidass,  1871,  TJ. 
S.;  Robert  Ritson,  1871,  TJ.  S. 

Authority  of  Danish  consul  where  stipulation  was  made  by 
captain  to  bind  master  to  comply  with  the  engagement  entered 
into ;  see  (The)  Willendson  v.  The  Forsoket,  1801,  TJ.  S. 

Court  indisposed  to  take  jurisdiction  except  with  consent  of 
consul;  see  (The)  Courtney,  1810,  G.  B. 

British  consul  protests  against  exercise  of  jurisdiction  and 
court  refuses  to  take  jurisdiction — Gives  a  copy  of  consul's  pro- 
test ;  see  Saunders  v.  (The)  Victoria,  1854,  TJ.  S. 

Court  refused  to  take  jurisdiction  against  the  protest  of  the 
British  consul;  see  Lynch  v.  Crowder,  1849,  TJ.  S. 

Competence  of  vice-consul  to  decide  questions  between  sea- 
men.— Court  refused  to  take  jurisdiction;  see  (The)  New  City, 
1891,  TJ.  S. 

Court  took  jurisdiction  at  the  request  of  the  consul;  see 
(The)  Sirius,  1891,  U.  S. 

Court  accepts  jurisdiction  where  no  objection  was  made  by 
consul;  see  Waitshoair  v.  The  Craigend,  1890,  TJ.  S. 

Consuls  in  Great  Britain  must  be  notified  before  the  court 
exercises  jurisdiction;  see  (The)  Nina,  1867,  G.  B. ;  (The)  Leon 
XIII,  1883,  G.  B.;  (The)  Agincourt,  1877,  G.  B.;  Golubchick,  1840, 
G.  B.;  (The)  Herzogin  Marie,  1861,  G.  B. 

743 


CONSULAR  FUNCTIONS 

Effect  of  consurs  protest;  see  (The)  Herzogin  Marie,  1861, 
G.  B. 

Presence  of  consul  when  ships  are  visited  bj'  the  local  au- 
thorities; see  Atty.  Gen.  Vol.  VIII,  p.  88,  1856,  TJ.  S. 

Speaks  of  consul's  consent  prior  to  the  courts  taking  juris- 
diction in  a  matter  concerning  seamen ;  see  (The)  Wilhelm  Fred- 
erick, 1823,  G.  B. 

Court  will  not  usually  entertain  suit  of  foreign  seaman  for 
wages  w^hen  consul  objects;  see  (The)  Franz  and  Elize,  1861, 
G.  B. 

Court  took  jurisdiction  over  suit  for  seaman's  wages  against 
the  request  of  consul  on  the  ground  that  such  action  was  likely 
to  save  time,  expense,  and  perhaps  further  litigation;  see  (The) 
Lady  Furness,  1897,  TJ.  S. 

On  the  ground  of  comity  district  court  heeded  British  con- 
sul's petition  not  to  take  jurisdiction;  see  (The)  Walter  D.  Wal- 
let, 1895,  U.  S. 

A  protest  by  a  foreign  consul  against  the  prosecution  of  a 
suit  for  wages  against  a  ship  of  his  country  does  not  deprive  the 
court  of  its  jurisdiction ;  but  makes  the  exercise  of  that  jurisdic- 
tion discretionary;  see  (The)  Octavie,  1863,  G.  B. 

(C.)  Extent  and  limit  of  consular  jurisdiction 

Consular  jurisdiction  over  ships  and  seamen ;  see  Harrison 
v.  Vose,  1849,  U.  S.;  (The)  Infanta,  1848,  U.  S.;  (The)  Herzogin 
Marie.  1861,  G.  B. 

Basis  and  extent  of  consul's  judicial  power;  see  Dainese  v. 
Hale,  1875,  U.  S. 

Right  of  French  consul  to  imprison  members  of  crew;  see 
Dallemagne  v.  Moisan,  1905,  IT.  S. 

Italian  treaty  gives  consul  jurisdiction  in  questions  of  dis- 
pute about  wages,  but  perhaps  does  not  extend  to  suits  for  in- 
juries received;  see  (The)  Salomoni,  1886,  U.  S. 

Jurisdiction  over  seamen's  disputes  granted  by  treaty  to 
consul  dof'S  not  extend  to  cases  of  homicide  and  felonies;  see 
Wildenhus's  Case,  1886,  U.  S. 

American  court  allowed  jurisdiction  of  consul  over  seamen 
even  when  American  citizens;  see  (The)  Welhaven,  1892,  TJ.  S.; 
(The)  Marie,  1892,  TJ.  S. 

Unless  seaman  is  legally  enrolled  he  is  not  a  member  of  the 
crew  and  the  consul  has  no  jurisdiction  over  him;  see  (The) 
Neck,  1905,  TJ.  S. 

744 


COMPENDIUM 

Official  acts  of  consul  in  the  discharge  of  his  duties  in  re- 
gard to  seamen  cannot  be  called  in  question  by  his  home  courts; 
see  Patch  v.  Marshall,  1853,  U.  S. 

Case  in  which  consul  has  by  the  law  of  Brazil  authority  to 
sell  damaged  goods;  see  Waldron  v.  Coombe,  1810,  G.  B. 

Right  of  a  foreign  consul,  in  the  United  States  to  sit  as  judge 
or  arbitrator;  see  (In  re)  Aubrey,  1885  U.  S. 

Foreigners  in  the  receiving  state  are  bound  to  some  extent 
by  the  acts  of  their  own  government  and  in  shipping  matters  by 
the  act  of  their  consul;  see  (The)  Herzogin  Marie,  1861,  G.  B. 

Consul  is  not  a  judicial  officer;  see  Waldron  v.  Coombe,  1810, 
G.  B. 

Consuls  have  certain  judicial  functions;  see  Barbuit's  Case, 
1737,  G.  B. 

Reasons  why  consul  is  better  placed  to  look  after  the  com- 
pliance with  the  legislation  of  the  sending  state;  see  (The)  In- 
fanta, 1848,  TJ.  S. 

Consul's  jurisdiction  over  members  of  crew  limited  to  mat- 
ters which  form  part  of  mariner's  contract  and  duties;  see  (The) 
Two  Friends,  1799,  G.  B. 

American  court  refused  to  take  jurisdiction  in  the  case  of  a 
dispute  between  two  French  citizens  who  were  referred  to  their 
consul;  the  latter  being  given  jurisdiction  by  treaty;  see  God- 
dard  v.  Luby,  1795,  TJ.  S. 

Case  in  which  court  declared  that  a  consul  had  no  right  to 
receive  fees  when  acting  upon  instructions  from  his  government; 
see  De  Lema  v.  Haldimand,  1824,  G.  B. 

Consideration  was  shown  to  the  consul  by  making  him  an  as- 
sessor; see  (The)  Hanava,  1858,  TJ.  S. 

Court  admits  affidavits  taken  before  the  British  consul  in 
Russia  because  magistrates  of  Russia  are  not  empowered  to  take 
affidavits;  see  (In  re)  Daly,  1841,  G.  B. 

Presence  of  consul  when  ships  are  visited  by  the  local  au- 
thorities ;  see  Atty.  Gen.  Vol.  VIII,  p.  88,  1856,  TJ.  S. 

Consuls  have  no  judicial  authority ;  see  Atty.  Gen.  Vol.  VIII, 
p.  77,  1856,  TJ.  S. 

Consuls  have  no  judicial  power  but  act  as  arbitrators  in  cer- 
tain cases;  see  Atty.  Gen.  Vol.  VIII,  p.  382,  1857,  TJ.  S. 

Discussion  of  the  jurisdiction  of  consuls;  see  Atty.  Gen.  Vol. 
VIII,  p.  382,  1857,  U.  S. 

Consuls  are  not  judicial  officers ;  see  Atty.  Gen.  Vol.  VIII,  p. 
381,  1857,  TJ.  S. 


745 


CONSULAR  FUNCTIONS 

Jurisdictions  of  consuls  in  case  of  crimes  committed  on  board 
ship  of  sending  state ;  see  Atty.  Gen.  Vol.  VIII,  p.  382,  1857,  TJ.  S. 

Consul  calls  upon  courts  of  receiving  state  to  put  into  effect 
decree  of  sending  state  dispossessing  master  of  ship;  see  (The) 
Evangelistria.  1876,  G.  B. 

Officer  who  arrested  master  w-ithout  direction  of  consul  lia- 
ble; see  Telefsen  v.  Fee,  1897,  TJ.  S. 

Jurisdiction  of  consul  for  the  condemnation  of  a  prize  not 
valid ;  see  Flad  Oyen,  1799,  G.  B. 

Consuls  have  no  right  to  condemn  prizes ;  see  Glass  v.  (The) 
Betsey.  1794,  TJ.  S. 

Consuls  cannot  perform  marriages  contrarily  to  law  of  the 
receiving  state ;  see  Atty.  Gen.  Vol.  VII,  p.  3,  1854,  TJ.  S. 

The  consul's  action  when  earing  for  estates  and  looking  after 
the  interests  of  owTiers  in  prize  proceedings  is  of  the  nature  of 
surveillance  and  is  not  judicial;  see  Atty.  Gen.  Vol.  VIII,  p. 
101.  1856,  TJ.  S. 

The  district  court  of  California  decided  that  sailors  were 
destitute  and  made  oviiiers  of  ship  repay  as  wages  money  which 
had  been  paid  to  consul  to  furnish  sailors  with  necessities;  see 
Atty.  Gen.  Vol.  XIX,  p.  24,  1887,  U.  S. 

"AMien  a  consul  intervenes  in  a  controversy  between  master 
and  seamen,  by  mutual  consent  of  the  disputants,  he  acts  as  an 
arbitrator  and  not  as  consul;"  see  Atty.  Gen.  Vol.  XXI,  p.  201, 
1888,  TJ.  S. 

"I  am  of  the  opinion  that  if  Dowd  was  discharged  by  the 
consul-general  because  of  unusual  or  cruel  treatment,  he  is  en- 
titled to  the  one  month's  extra  wages  allowed  by  statute,  and 
that  some  reasonable  discretion  is  to  be  permitted  to  the  con- 
sular authority  in  determining  this  extra  allowance  in  reference 
to  actual  or  anticipated  ill-treatment  and  a  discharge  consequent 
thereon;"  see  Atty.  Gen.  Vol.  XXII,  p.  212,  1898,  TJ.  S. 

It  is  clear  that  under  this  treaty  system  between  these  three 
Latin  countries — Spain,  Italy,  and  France — the  consul  is  to  ex- 
ercise an  exterritorial  judicial  power  and  to  be  the  real  adminis- 
trator of  the  estate;  but  that  disputes  in  which  the  country 
where  the  death  occurred  has  some  special  interest,  as  where  its 
own  people  or  the  people  of  a  third  country  whom  it  should  pro- 
tect are  concerned,  are  to  be  carved  out  of  his  jurisdiction  and 
settled  by  the  local  judicial  authority,  leaving  him  to  resume  his 
functions  when  these  special  questions  have  been  determined;" 
see  Atty.  Gen.  Vol.  XXHI,  p.  104,  1900,  TJ.  S. 

Spanish  consuls  in  foreign  countries  are  authorized  to  exer- 

746 


COMPENDIUM 

cise  all  the  powers  of  courts  of  first  instance,  if  permitted  to  do 
so  by  the  laws  of  the  country  to  which  they  are  accredited;  see 
Atty.  Gen.  Vol.  XXIII,  p.  105  and  p.  114,  1900,  U.  S. 

Conditions  covering  the  issuance  of  letters  rogatory  and 
open  commissions ;  see  Atty.  Gen.  Vol.  XXIV,  p.  70,  1902,  U.  S. 

Spanish  consuls  in  Great  Britain  are  instructed  to  obtain  the 
testimony  of  voluntary  witnesses  by  proceedings  before  a  mag- 
istrate, but  to  attend  to  citations  themselves;  see  Atty.  Gen.  Vol. 
XXIII,  p.  114,  1900,  TJ.  S. 

French  consul's  jurisdiction  limited  to  disputes  on  board 
ship  not  disturbing  the  police  of  the  port ;  see  Atty.  Gen.  Vol.  II, 
p.  379,  1830,  U.  S. 

The  president  has  no  authority  to  extend  the  judicial  power 
of  foreign  consuls  on  the  ground  of  reciprocal  treatment;  see 
Atty.  Gen.  Vol.  II,  p.  383,  1830,  U.  S. 

Marshals  are  not  required  by  law  to  execute  the  sentence  of 
a  French  consul,  arising  imder  the  12th  article  of  the  convention 
with  France ;  see  Atty.  Gen.  Vol.  I,  p.  43,  1794,  U.  S. 

Case  in  which  deserter  was  forcibly  taken  from  the  custody 
of  the  United  States  marshal  while  the  latter  was,  upon  the  writ- 
ten order  of  the  consul,  delivering  him  to  the  master  of  the  ves- 
sel— Court  held  that  the  law  required  the  delivery  to  the  consul 
and  that  acting  under  the  direction  of  the  consul  the  marshal 
was  not  engaged  in  the  performance  of  a  duty  enjoined  by  law. 
Hence  the  defendants  could  not  be  punished  for  obstructing  an 
officer  in  the  performance  of  a  duty  enjoined  by  law ;  see  United 
States  V.  Kelly,  1901,  TJ.  S. 

Case  in  which  a  consul  does  an  injustice  to  seaman  in  dis- 
charging him — Consuls  decision  ordinarily  entitled  to  full  cred- 
ence, but  not  when  there  was  according  to  the  testimony  no 
hearing,  no  judgment  and  no  record;  see  (The)  Sachem,  1894, 
TT.  S. 

"We  know  of  no  law,  federal  or  state,  which  vests  national 
representatives  with  the  power  of  serving  judicial  process  of 
state  courts  on  parties  within  their  sphere  of  representative  ac- 
tion ; "  see  Dumas,  Interdiction  of  Joseph,  1880,  TJ.  S. 

Court  praised  consul,  who  did  not  attempt  to  interfere  with 
the  libellant's  invocation  of  the  interposition  of  the  court  but 
merely  suggested  the  improbability  that  the  court  would  enter- 
tain jurisdiction ;  see  Townshend  v.  The  Mina,  1868,  TJ.  S, 

Consul  advises  master  to  take  back  sailor  who  had  been  ab- 
sent and  when  master  refused  certified  that  there  was  in  his  be- 
lief sufficient  cause  for  a  libel  for  wages  and  damages ;  see  Hayes 
V.  J.  J.  Wickwire,  1870,  TJ.  S. 

747 


CONSULAR  FUNCTIONS 
(D.)  Jurisdiction  of  consul  over  crimes  committed  on  board 

Consul's  protest  against  removal  from  ship  of  prisoners 
placed  on  board  for  conveyance  to  the  United  States  to  be  tried ; 
see  Tingle  v.  Tucker,  1849,  II.  S. 

Authority  of  consuls  to  send  home  seamen  for  trial;  see 
Matthews  v.  Offley,  1837,  TI.  S. 

Consul  sent  member  of  crew  home  in  irons  for  manslaughter ; 
see  Smith  v.  Treat,  1845.  TT.  S. 

Jurisdiction  of  consul  over  ship  does  not  extend  to  homicide 
and  felonies ;  see  (The)  Belgenland,  1884,  TJ.  S. 

The  Italian  treaty  does  not  perhaps  give  jurisdiction  to  con- 
sul in  case  of  injuries  received ;  see  (The)  Salomoni,  1886,  IT.  S. 

Jurisdiction  of  consuls  over  crew  for  crimes;  see  Atty.  Gen. 
Vol.  VIII,  p.  73,  1856,  U.  S. 

Jurisdiction  of  consuls  in  case  of  crime  committed  on  board 
a  ship  of  sending  state;  see  Atty.  Gen.  Vol.  VIII,  p.  382,  1857, 
U.  S. 

(E.)  Cases  in  which  consuls  granted  jurisdiction  by  reason  of  treaty 
stipulations 

See  (Ex  parte)  Newman,  1871,  TJ.  S.;  Villeneuve  v.  Barrion, 
1795.  TJ.  S. ;  Caignet  v.  Pettit,  1795,  TJ.  S. ;  (The)  Elwin  Kreplin, 
1870,  U.  S.;  (The)  Burchard,  1890,  TJ.  S.;  Atty.  Gen.  Vol.  XII,  p. 
465,  1868,  U.  S. ;  Norberg  v.  Hillgreu,  1846,  TJ.  S. 

Court  refused  to  extend  to  Sweden  by  virtue  of  the  most 
favored  nation  clause  the  rights  of  jurisdiction  granted  to 
French  consuls  in  a  special  treaty;  see  Weiberg  v.  (The)  St. 
Oloff,  1790.  TJ.  S. 

FUNCTIONS  IN  CARING  FOR  THE  GENERAL  INTERESTS  OF  HU- 
MANITY AND  OF  FRIENDLY  STATES 

r 

Consul  of  a  third  state  may,  with  the  consent  of  his  gov- 
ernment, perform  ordinary  and  routine  duties  of  an  American 
consul;  see  Atty.  Gen.  Vol.  XXII,  p.  76,  1898,  U.  S. 

Where  the  consuls  of  a  third  power  are  entrusted  with  the 
interests  of  sending  state  their  action  is  generally  confined  to  ex- 
tending protection  and  good  offices;  see  Atty.  Gen.  Vol.  XXII,  p. 
76,  1898,  U.  S. 

FUNCTIONS  IN  NEUTRAL  STATES  IN  TIME  OF  WAR 

Dutch  consul  protests  to  Portugese  authorities  against  Brit- 

748 


COMPENDIUM 

ish  violation  of  Portugese  neutrality ;  see  (The)  Vrow  Anna  Cath- 
arina,  1803,  U.  S. 

Consul  protests  against  the  validity  of  a  capture — gives  a 
certificate  to  the  ovraer  that  ship  is  still  British ;  see  Betty  Cath- 
cart,  1799,  G.  B. 

Consul  has  no  authority  to  grant  a  license  to  an  enemy  to 
exempt  his  property  from  capture;  see  (The)  Hope,  1813,  G.  B.; 
Benito  v.  Estenger,  1900,  TJ.  S. 

United  States  consul  has  no  authority  to  grant  license  or 
exemption  from  capture ;  see  Rogers  v.  Amado,  1847,  TJ.  S. ;  (The) 
Hope,  1813,  G.  B. 

Condemnation  of  prizes  by  consuls;  see  (The)  Flad  Oyen, 
1799,  G.  B. 

Consular  jurisdiction  in  matters  of  prize  not  of  right;  see 
Glass  V.  The  Betsey,  1794,  IT.  S. 

Action  of  consul  as  recruiting  agent  for  his  government; 
see  Atty.  Gen.  Vol.  VIII,  p.  469,  1855,  TI.  S. 

"Officious"  letters  of  British  consuls  were  not  allowed  to 
be  read  in  court  when  the  United  States  government  felt  that 
the  British  government  was  attempting  to  violate  the  neutrality 
laws  of  the  United  States ;  see  Atty.  Gen.  Vol.  VIII,  p.  469,  1855, 
TJ.  S. 

Consuls  have  no  right  to  enlist  recruits  contrarily  to  the 
spirit  of  the  law  or  public  policy  of  the  receiving  state ;  see  Atty. 
Gen.  Vol.  VII,  p.  381,  1855,  U.  S. 

FUNCTIONS  IN  TERRITORY  UNDER  BELLIGERENT  AUTHORITY 

Consul  has  no  authority  to  use  his  title  or  name  to  protect 
enemy's  property  from  capture  within  the  enemy's  lines;  see 
Coppell  V.  Hall,  1868,  U.  S. 

Nature  of  the  consul 's  action  in  prize  proceedings ;  see  Atty. 
Gen.  Vol.  VIII,  p.  101,  1856,  U.  S. 

A  consul  may  represent  the  interests  of  his  nationals  in  prize 
proceedings  but  his  action  is  in  the  nature  of  surveillance;  see 
Atty.  Gen.  Vol.  VIII,  p.  101,  1856,  U.  S. 

Consul  of  Oldenburg  charged  with  the  duty  of  looking  after 
prizes  of  nationals  detained  as  prisoners  of  war  and  making  the 
necessary  intercessions  before  the  proper  tribunals  to  procure 
them  their  liberty ;  see  Viveash  v.  Becker,  1814,  G.  B. 

Extent  to  which  a  consul  representing  another  consul  with- 
drawn b}'  reason  of  war  is  a  consul  of  the  belligerent  state;  see 
Atty.  Gen.  Vol.  XXII,  p.  75,  1898,  U.  S. 

749 


CONSULAR  IMMUNITIES 


NATURE  AND  BASIS  OF  CONSULAR  IMMUNITIES 

Imiiumities  which  are  necessary  to  perform  consular  func- 
tions; see  Marshall  v.  Cretico,  1808,  G.  B. 

Basis  and  extent  of  consular  immunities ;  see  Arnold  v.  (The) 
United  Insurance  Company,  1800,  U.  S. ;  Valarino  v.  Thompson, 
1853,  U.  S. 

The  jurisdiction  of  consul  over  seamen  is  reciprocally  granted 
because  of  the  advantage  to  each  country;  see  Norberg  v.  Hill- 
g^eu,  1846,  U.  S. 

Enumeration  of  consular  immunities  in  the  United  States; 
see  Atty.  Gen.  Vol.  VII,  p.  21,  1854,  U.  S. 

In  absence  of  any  fixed  rules  of  the  law  of  nations  as  to 
whether  the  consul's  immimities  exempt  him  from  certain  bur- 
dens or  duties  the  particular  laws  of  the  receiving  state  must  de- 
termine ;  see  Atty.  Gen.  Vol.  VIII,  p.  171,  1856,  U.  S. 

Consuls  have  no  immunities  beyond  persons  coming  to  coun- 
try in  a  private  capacity,  and  in  civil  and  criminal  cases,  they 
are  equally  subject  to  the  laws  of  the  receiving  state;  see  Atty. 
Gen.  Vol.  11,  p.  725,  1835,  U.  S. 

The  president  has  no  authority  to  extend  the  judicial  power 
of  foreign  consuls  on  the  ground  of  reciprocal  treatment;  see 
Atty.  Gen.  Vol.  II,  p.  383,  1830,  U.  S. 

"By  all  governments  his  [the  consul's]  representative  char- 
acter is  recognized  and  for  that  reason  certain  exemptions  and 
privileges  are  granted  him;"  see  Oscanyan  v.  Arms  Company, 
1880,  U.  S. 

(A.)  Treaty  rights 

Immimities  and  privileges  granted  by  treaty  and  interpre- 
tation of  tn-aty  provisions;  see  Baiz  v.  Malo,  1899,  U.  S. ;  (The) 
Burchard,  1890,  U.  S.;  Lallemagne  v.  Moisan,  1905,  U.  S.;  (Suc- 
cession of)  Dufour,  1855,  U.  S.;  (The)  Elwine  Kreplin,  1872,  U. 
S. ;  (Matter  of)  Fattosini,  1900,  U.  S.;  (The)  General  McPherson, 
1900,  U.  S. ;  Goddard  v.  Luby,  1795,  U.  S.;  Lanfear  v.  Ritchie,  1854, 
U.  S. ;  (In  re)  Lobrasciano's  Estate,  1902,  U.  S. ;  (In  re)  Logiorato's 
Estate,  1901,  U.  S.;  (The)  Marie,  1892,  U.  S.;  (Ex  parte)  Newman, 
1871,  U.  S.;  Norberg  v.  Hillgreu,  1846,  U.  S.;  (In  re)  Peterson's 
Will,  1906,  U.  S.;  (Succession  of)  Rabasse,  1895,  U.  S.;  (The) 
Salomoni,  1886,  U.  S. ;  Telefsen  v.  Fee,  1897,  U.  S. ;  United  States 
V.  Motherwell,  1900,  U.  S.;  Von  Thodorovich  v.  Franz  Josef  Bene- 

750 


COMPENDIUM 

ficial  Association,  1907,  U.  S.;  Weiberg  v.  The  St.  Oloff,  1790,  TJ. 
S.;  (The)  Welhaven,  1892,  TJ.  S.;  Wildenhus's  Case,  1886,  U.  S.; 
(In  re)  Wyman,  1906,  TJ.  S. 

The  Spanish  consul  to  secure  the  arrest  of  a  deserter  under 
the  treaty  must  produce  the  original  roll  or  corresponding  docu- 
ment containing  the  names  of  the  crew.  A  copy  certified  by  the 
consul  does  not  meet  the  requirements  of  the  treaty,  see  Atty. 
Gen.  Vol.  IX,  p.  97,  1857,  U.  S. 

Nothing  in  the  convention  with  Prance  gives  the  consul  free- 
dom from  suit  in  the  American  courts ;  see  Atty.  Gen.  Vol.  I,  p.  77, 
1797,  U.  S. 

Marshals  are  not  required  by  law  to  execute  the  sentence 
of  a  French  consul,  arising  under  the  12th  article  of  the  conven- 
tion with  France ;  see  Atty.  Gen.  Vol.  I,  p.  43,  1797,  TJ.  S. 

(B.)  Most  favored  nation  clause 

See  (Matter  of)  Fattosine,  1900,  TJ.  S.;  Weiberg  v.  (The)  St. 
Oloff,  1790,  TJ.  S. ;  (In  re)  Logiorato's  Estate,  1901,  TJ.  S. ;  Valarino 
v.  Thompson,  1853,  TJ.  S. ;  (In  re)  Peterson's  Will,  1908,  TJ.  S. ;  (In 
re)  Wyman,  1906,  TJ.  S. 

Court  refused  to  allow  to  Sweden  by  virtue  of  the  most 
favored  nation  clause  the  jurisdiction  granted  French  consuls 
by  special  treaty ;  see  Weiberg  v.  (The)  St.  Oloff,  1790,  TJ.  S. 

Columbian  vice-consul  cannot  be  compelled  to  attend  as  a 
witness  by  virtue  of  the  most  favored  nation  clause;  see  Biaz  v. 
Malo,  1899,  U.  S. 

By  virtue  of  the  most  favored  nation  clause  Chilian  consul 
cannot  be  compelled  to  testify;  see  United  States  v.  Trumbull, 
1891,  TJ.  S. 

It  is  an  unsettled  question  whether  the  provisions  of  the 
consular  convention  with  France  apply  to  nations  enjoying  the 
benefit  of  the  most  favored  nation  clause;  see  Atty.  Gen.  Vol. 
VII,  p.  385,  1855,  TJ.  S. 

(C.)  Relative  value  of  treaty  provisions  and  municipal  law  when  in 
conflict 


Treaty  cannot  take  away  right  of  an  American  citizen  to 
have  recourse  to  his  own  courts;  see  (The)  Falls  of  Keltic,  1902, 
U.S. 

Privilege  granted  consuls  declared  to  modify  state  laws ;  see 
(Succession  of)  Rabasse,  1895,  U.  S. 

Treaty  provisions  supersede  state  laws  and  prevent  the  ap- 
751 


CONSULAR  IMMUNITIES 

plication  of  tax  imposed  by  latter;  see  (Succession  of)  Dufour, 
1855.  TJ.  S. 

State  statutes  must  give  way  to  provisions  of  treaty  and 
the  procedure  followed  by  the  court  must  be  made  to  conform  to 
such  provisions  in  as  far  as  possible;  see  (Matter  of)  Fattosini, 
1900,  U.  S. 

Question,  whether  alleged  deserters  should  be  given  up  to 
German  consul  by  reason  of  the  application  of  article  14  of  the 
Convention  of  1871  with  Germany,  should  be  submitted  to  the 
proper  court  for  a  judicial  determination;  see  Atty.  Gen.  Vol. 
XXV,  p.  77,  1903,  U.  S, 

(D.)  Enforcement  of  treaty  rights 

Case  in  which  supreme  court  could  not  compel  inferior  court 
to  decide  in  any  other  way  leaving  government  with  no  means 
of  enforcing  treaty  against  the  ^\•ill  of  the  inferior  court;  see 
United  States  v.  Judge  Lawrence,  1795,  TJ.  S. 

Mixed  international  commission  awarded  damage  because 
consul  was  not  allowed  to  act  as  executor  in  accordance  with 
the  stipulation  of  the  treaty ;  see  (In  re)  Vergil,  1857,  IT.  S. 

Question  whether  alleged  deserters  should  be  given  up  to 
German  consul  by  reason  of  the  application  of  article  14  of 
the  Convention  of  1871  with  Germany,  should  be  submitted  to 
the  proper  court  for  a  judicial  determination;  see  Atty.  Gen. 
Vol.  XXV,  p.  77,  1903,  TJ.  S. 

(E.)  Incompetence  to  perform  functions  prohibited  by  receiving  state 

Sending  state  will  not  insist  upon  performance  of  duties 
which  receiving  state  object  to  consul's  fulfilling;  see  (In  re) 
Fawcus,  1884,  G.  B. 

Opinion  in  which  it  was  implied  that  consul  could  not  per- 
form marriage  which  would  be  contrary  to  the  law  of  the  re- 
ceiving state;  see  Atty.  Gen.  Vol.  VII,  p.  32,  1854,  TJ.  S. 

Consul  may  not  discharge  functions  eontrarily  to  the  law 
of  the  receiving  state ;  see  Atty.  Gen.  Vol.  VIII,  p.  100,  1856,  TJ.  S. 

For  consuls  knowingly  to  attempt  to  contravene  the  spirit 
of  the  laws  of  the  receiving  state  is  a  violation  of  its  sovereign 
rights;  .see  Atty.  Gen.  Vol.  VIII,  p.  470,  1855,  TJ.  S. 

"Instead  of  this,  it  is  bound,  not  only  by  every  consideration 
of  international  comity,  but  of  the  strictest  international  law,  to 
respect  the  sovereignty  and  regard  the  public  policy  of  the 
Ignited  States;"  see  Atty.  Gen.  Vol.  VII,  p.  381,  1855,  U.  S. 

Consul  may  be  indicted  for  infractions  of  the  municipal  law 

752 


COINIPENDIUM 

even  when  acting  officially ;  see  Atty.  Gen.  Vol.  VII,  p.  384,  1855, 
U.  S. 

"American  consul  has  no  authority  except  what  may  be  ex- 
pressly granted  by  a  law  of  congress,  and  acknowledged  by  the 
government  in  whose  jurisdiction  he  resides;"  see  Atty.  Gen. 
Vol.  XIX,  p.  197,  1888,  U.  S. 

Spanish  consuls  in  foreign  countries  are  authorized  to  exer- 
cise all  the  powers  of  courts  of  first  instance,  if  permitted  to  do 
so  by  the  laws  of  the  country  to  which  they  are  accredited;  see 
Atty.  Gen.  Vol.  XXIII,  p.  105  and  p.  114,  1900,  U.  S. 

Consuls  might  acquire  the  right  to  solemnize  marriage  by 
the  municipal  act  of  any  foreign  government  giving  legality  to 
a  marriage  within  it  so  celebrated,  in  which  case  there  would  be 
nothing  in  our  law  or  in  our  public  policy  to  forbid  a  consul's 
officiating  in  that  relation ;  secondlj^  perhaps,  specially  by  treaty, 
or  generally  by  act  of  congress;  see  Atty.  Gen.  Vol.  VII,  p.  343, 
1855,  IT.  S. 

Consul  is  legally  incapable  of  solemnizing  marriage  without 
authority  of  the  local  government;  see  Atty.  Gen.  Vol.  VII,  p. 
343,  1855,  TJ.  S. 

(F.)  Right  of  consul  to  waive  the  enjoyment  of  immunities 

Immunity  from  arrest  when  given  is  to  protect  the  in- 
terests of  the  sending  state  and  cannot  be  waived  by  the  consul, 
nor  is  it  dependent  upon  an  individual's  belief  that  he  is  consul 
or  upon  his  acting  hona  fide  as  consul.  The  grant  of  the  im- 
munity is  dependent  upon  its  usefulness  to  the  sending  state; 
see  Marshall  v.  Critico,  1808,  G.  B. 

Consul  cannot  waive  privileges  of  jurisdiction  in  federal 
court ;  see  Miller  v.  Van  Loben  Sells,  1885,  U.  S. ;  Wilcox  v.  Luco, 
1896,  U.  S. ;  45  Pac.  Rep.  676  was  reversed  in  50  Pac.  Rep.  758. 

Consul  may  not  renounce  privilege  advantageous  to  his 
government;  see  Barbuit's  Case,  1737,  G.  B.;  Davis  v.  Packard, 
1833,  TJ.  S.;  Boers  v.  Preston,  1883,  IT.  S.;  Valarino  v.  Thompson, 
1853,  TJ.  S. 

Consul  may  waive  his  right  to  have  a  suit  against  him  re- 
viewed by  federal  court;  see  Wilcox  v.  Lnco,  1897,  TJ.  S. 

IMMUNITIES  MAKING  FOR  THE  RESPECT  OF  THE  CONSULAR 
OFFICE 

Consul  was  made  an  assessor;  see  (The)  Havana,  1858,  U.  S. 
Consul  in  charge  of  business  of  legation  not  necessarily  en- 
titled to  diplomatic  immunities ;  see  (In  re)  Baiz,  1889,  U.  S. 

753 


CONSULAR  BOIUNITIES 

National  courtesy  will  prompt  the  courts  of  the  receiving 
state  to  hesitate  in  making  the  consul's  official  acts  the  subject 
of  comment ;  see  Norberg  v.  Hillgreu,  1846,  U.  S. 

Procedure  to  be  followed  by  a  foreign  consul  who  wishes  to 
appeal  to  the  United  States  federal  courts  to  punish  insult  of- 
fered to  him ;  see  Atty.  Gen.  Vol.  I,  p.  43,  1794,  II.  S. 

Insults  offered  by  a  tumultuous  crowd  to  the  consul  before  his 
residence  are  not  covered  by  the  act  of  April  30,  1790,  which  pun- 
ishes for  any  infraction  of  the  laws  of  nations,  by  offering  vio- 
lence to  the  person  of  an  ambassador  or  other  public  ministers 
as  consul  is  not  a  public  minister;  see  Atty.  Gen.  Vol.  I,  p.  42, 
1794.  TJ.  S. 

FORCIBLE  ASSISTANCE  GIVEN  TO  THE  CONSUL  BY  AUTHORITIES 
OF  THE  RECEIVING  STATE 

Procedure  to  be  followed  by  foreign  consul  who  wishes  to 
appeal  to  the  United  States  federal  courts  to  punish  insult  of- 
fered to  him;  see  Atty.  Gen.  Vol.  I,  p.  43,  1794,  U.  S. 

Court  declares  that  it  has  no  authority  to  compel  witnesses 
to  testify  before  Spanish  consul;  see  Spanish  Consul's  Petition, 
1867,  U.  S. 

Case  in  which  deserter  was  forcibly  taken  from  the  custody 
of  the  United  States  marshal  while  the  latter  was,  upon  the 
written  order  of  the  consul,  delivering  him  to  the  master  of  the 
vessel.  Court  held  that  the  law  required  the  delivery  to  the 
consul  and  that  acting  under  the  direction  of  the  consul  the  mar- 
shal was  not  in  the  performance  of  a  duty  enjoined  by  law. 
Hence  the  defendants  could  not  be  punished  for  obstructing  an 
officer  in  the  performance  of  a  duty  enjoined  by  law;  see  United 
States  V.  Kelly,  1901,  U.  S. 

PERSONAL  INVIOLABILITY  OF  CONSUL 
(A.)  Protection  from  assault 

Where  an  individual  is  pursued  for  an  assault  it  is  not  a 
case  "affecting  consuls"  in  the  meaning  of  the  constitution  of 
the  United  States;  see  United  States  v.  Ortega,  1826,  U.  S. 

Filipino  wms  imprisoned  for  striking  the  Spanish  consul; 
see  United  States  v.  Lucinario,  1906,  U.  S. 

Consul  must  look  for  the  protection  of  his  person  and  prop- 
erty to  the  laws  of  the  state  in  which  he  resides;  see  Atty.  Gen. 
Vol.  XIX,  p.  16,  1887,  U.  S. 

754 


COMPENDIUM 

Consuls  are  not  public  ministers  but  enjoy  certain  privileges 
such  as  for  safe  conduct;  see  Viveash  v.  Becker,  1814,  G.  B. 

Insults  offered  by  a  tumultuous  crowd  to  the  consul  before 
his  residence  are  not  covered  by  the  act  of  April  30,  1790,  which 
punishes  for  any  infraction  of  the  laws  of  nations,  by  offering 
violence  to  the  person  of  an  ambassador  or  other  public  minis- 
ters as  consul  is  not  a  public  minister ;  see  Atty.  Gen.  Vol.  I,  p.  42, 
1794,  TT.  S. 

(B.)  Consular  domicile 

Consul  does  not  lose  his  domicile  in  sending  state ;  see  Sharpe 
and  Sharpe  v.  Crispin,  1869,  G.  B. ;  Niboyet  v.  Niboyet,  1878,  G.  B. 

An  individual  domiciled  in  the  receiving  state  does  not  lose 
his  domicile  by  becoming  a  consul ;  see  Sharpe  and  Sharpe  v.  Cris- 
pin, 1869,  G.  B. 

Despatched  consuls  retain  their  domicile  in  the  sending 
state ;  see  Arnold  v.  United  Insurance  Company,  1800,  TT.  S. 

Consul  general  for  Scotland  appointed  deputies.  Court  de- 
clared that  if  the  deputies  were  now  acting  it  would  be  a  "  strong 
circumstance  to  affect  him  with  a  British  residence,  as  long  as 
there  are  persons  acting  in  an  official  station  here,  and  deriving 
their  authority  from  him;"  see  Dree  Gebroeders  v.  Vandyk,  1802, 
G.  B. 

(C.)  Jurisdiction  of  the  courts  of  the  receiving  state  in  the  case  of 
consul's  official  acts 

Eeasons  why  the  courts  of  receiving  state  should  not  decide 
as  to  the  fulfillment  by  the  consul  of  the  regulations  enacted  by 
the  sending  state;  see  (The)  Infanta,  1848,  U.  S. 

British  consul  claimed  that  his  official  acts  should  not  be 
examined  by  the  courts  of  the  receiving  state;  see  Saunders 
V.  The  Victoria,  1854,  U.  S. 

The  consul  is  not  civily  responsible  for  an  official  act;  see 
Jones  V.  Le  Tombe,  1798,  XT.  S. 

The  American  courts  will  not  call  in  question  the  official  acts 
of  a  British  consul  respecting  the  crew  and  vessel  done  in  a  for- 
eign port.  In  this  case  the  seaman  concerned  was  an  American; 
see  Patch  v.  Marshall,  1853,  IT.  S. 

Consul  acting  in  an  official  capacity  refused  to  deliver  up 
papers  of  the  ship,  Betty  Cathcart,  and  the  court  refused  to 
compel  him  to  do  so ;  see  (The)  Betty  Cathcart,  1799,  G.  B. 

National  courtesy  will  prompt  the  courts  of  the  receiving 
755 


CONSULAR  IMMUNITIES 

state  to  hesitate  in  making  the  consul's  official  acts  the  subject 
of  comment ;  see  Norberg  v.  Hillgreu,  1846,  U.  S. 

Consuls  may  be  indicted  for  infractions  of  the  municipal  law 
even  when  acting  officially ;  see  Atty.  Gen.  Vol.  VII,  p.  384,  1855, 
U.S. 

Consul  is  subject  to  the  jurisdiction  of  the  receiving  state 
even  when  acting  oft'icially ;  see  Atty.  Gen.  Vol.  I,  p.  78,  1797, 
U.  S. 

Consul  not  required  to  give  bail  when  a  suit  is  brought 
against  him  for  an  official  act  in  which  he  has  acted  as  commer- 
cial agent  of  his  country ;  see  Atty.  Gen.  Vol.  I,  p.  78,  1797,  U.  S. 

Though  it  is  well  settled  in  the  United  States  as  in  Great 
Britain  that  a  person  acting  under  a  commission  from  the  sov- 
ereign of  a  foreign  nation  is  not  amenable  for  what  he  does  in  pur- 
suance of  his  commission,  to  any  judiciary  tribunal  in  the  United 
States,  nevertheless  the  executive  cannot  interpose  with  the  judi- 
ciary proceedings  between  an  individual  and  the  official  holding 
the  commission ;  see  Atty.  Gen.  Vol.  1,  p.  81,  1797,  IT.  S. 

Although  the  transaction  was  of  a  public  nature  concerning 
the  republic  of  France  and  the  consul-general  acted  as  the  com- 
mercial agent  of  the  republic,  "yet  the  President  of  the  United 
States  has  no  constitutional  right  to  interpose  his  authority,  but 
must  leave  the  matter  to  the  tribunals  of  justice ; ' '  see  Atty.  Gen. 
Vol.  I,  78,  1797,  U.  S. 

(D.)  Protection  of  individuals  of  the  receiving  state  against  acts  of 
consuls 


Case  in  which  consul  was  sued  for  false  imprisonment  be- 
cause of  illegal  arrest  secured  by  consul;  see  Castro  v.  De  Uriarte, 
1883,  U.  S. 

United  States  court  will  not  call  in  question  the  official  act 
of  British  consul  in  foreign  port  even  when  American  seamen 
are  concerned;  see  Patch  v.  Marshall,  1853,  TJ.  S. 

Right  of  individual  to  demand  the  performance  of  certain 
services  of  a  consul ;  see  De  Lema  v.  Haldimand,  1824,  G.  B. 

"It  is  clear  that  under  this  treaty  system  between  these  three 
Latin  countries — Spain,  Italy,  and  France — the  consul  is  to  ex- 
ercise an  exterritorial  judicial  power  and  to  be  the  real  adminis- 
trator of  the  estate ;  but  that  disputes  in  which  the  country  where 
the  death  occurred  has  some  special  interest,  as  where  its  own 
people  or  the  people  of  a  third  country  whom  it  should  protect 
are  concerned,  are  to  be  carved  out  of  his  jurisdiction  and  set- 

756 


COMPENDIUM 

tied  by  the  local  judicial  authority,  leaving  him  to  resume  his 
functions  when  these  special  questions  have  been  determined;" 
see  Atty.  Gen.  Vol.  XXIII,  p.  104,  1900,  U.  S. 

(E.)  Protection  of  individuals  of  the  sending  state  against  acts  of 
consul 


Foreign  consul  may  be  sued  for  fees  illegally  collected;  see 
Lorway  v.  Lousada,  1866,  U.  S. 

Receiving  state  is  not  bound  to  protect  individuals  against 
acts  of  their  government  and  consuls;  see  (The)  Herzogin  Marie, 
1861,  G.  B. 

Courts  of  the  United  States  are  not  required  to  protect  aliens 
against  acts  of  their  own  consul ;  see  (In  re)  Lobrasciano's  Estate, 
1902,  U.  S. 

Determination  of  what  constitutes  an  official  act;  see  Mosby 
V.  United  States,  1888,  TJ.  S. 

The  consent  of  consul  necessary  in  certain  cases  to  prosecute 
in  the  courts  of  the  receiving  state ;  see  (The)  Infanta,  1848,  TJ.  S. 

It  is  the  duty  of  the  United  States  to  protect  the  public 
against  the  exercise  of  consular  duties,  even  voluntary  ones,  by 
any  person  who  has  not  been  authorized  to  do  so  by  congress ;  see 
Atty.  Gen.  Vol.  XX,  p.  93,  1891,  U.  S. 

The  remedy  of  individuals  suffering  from  wrongs  or  short- 
comings of  a  consul  of  the  United  States  is  against  the  consul 
and  the  sureties  on  his  bond ;  see  Atty.  Gen.  Vol.  XIX,  p.  24,  1887, 
U.S. 

INVIOLABHITY  OF  CONSULATE 

(A.)  Inviolability  of  archives 

American  court  refused  to  compel  French  consul  to  give  up 
papers  of  ship  which  had  been  illegally  condemned;  see  (The) 
Betty  Cathcart,  1799,  G.  B. 

Inviolability  of  archives;  see  Kessler  v.  Best,  1903,  U.  S.;  (In 
re)  Dillon,  1854,  U.  S. 

EIGHT  TO  COMMUNICATE  WITH  AUTHORITIES  AND  TO  HAVE 
SUCH  COMMUNICATION  TREATED  WITH  DUE  CONSIDERA- 
TION 

' '  Officious ' '  letters  of  British  consuls  were  not  allowed  to  be 
read  in  court  when  the  United  States  government  felt  that  the 
British  government  was  attempting  to  violate  the  neutrality  laws 
of  the  United  States ;  see  Atty.  Gen.  Vol.  VIII,  p.  469,  1855,  U.  S. 

757 


CONSULAR  IMMUNITIES 

"Many  cogent  reasons  dictate  that  we  should  insist  on  the 
ri^rht  to  address  the  colonial  or  provincial  government;"  see 
Atty.  Gen.  Vol.  VII,  p.  344,  1855,  U.  S. 

When  no  diplomatic  representative  is  present  a  consul  should 
have  the  right  to  place  himself  in  direct  commimication  with  the 
political  authority  of  such  government;  see  Atty.  Gen.  Vol.  VII, 
p.  344,  1855,  U.  S.' 

"AVe  have  or  may  have  a  minister  of  whatever  title,  who  is 
of  course,  by  public  law,  superior  in  rank  to  consuls,  and  their 
medium  of  comnnmication  with  the  government;"  see  Atty.  Gen. 
Vol.  VII,  p.  275,  1855,  U.  S. 

"A  correspondence  ensued  between  the  captain  general  of 
Cuba  and  Mr.  Trist,  (United  States  consul),  which  terminated 
in  a  friendly  disposition  of  the  question,  whether  the  seizure  of 
the  vessel  in  the  port  of  Havana  w^as  a  violation  of  the  jurisdic- 
tional rights  of  Spain;"  see  Atty.  Gen.  Vol.  Ill,  p.  406,  1839,  U. 
S. 

IMMUNITIES  TO  PREVENT  INTERRUPTION^ 

It  is  for  the  executive  and  not  for  the  courts  to  determine 
who  are  public  ministers ;  see  (In  re)  Baiz,  1889,  U.  S. 
Procedure  to  be  followed  by  consul  who  wishes  to  plead  immunity 
from  jurisdiction ;  see  Atty.  Gen.  Vol.  I,  p.  407,  1820,  U.  S. 

(A.)  Consuls  are  subject  to  the  jurisdiction  of  the  courts  of  the  re- 
ceiving state 

Consuls  are  subject  to  the  territorial  jurisdiction;  see  Bar- 
buit's  Case,  1737,  G.  B. ;  Atty.  Gen.  Vol.  VII,  p.  21,  1854,  U.  S. 

Consuls  have  no  immunity  from  criminal  prosecution;  see 
Commonwealth  v.  Kosloff,  1816,  U.  S. ;  United  States  v.  Ravara, 
1793,  U.  S. 

A  consul  was  declared  to  be  subject  to  the  jurisdiction  of  the 
receiving  state  in  certain  cases — A  contrario  they  would  seem  to 
enjoy  a  certain  exemption  in  others;  see  Arnold  v.  (The)  United 
Insurance  Company,  1800,  U.  S. 

Court  takes  jurisdiction  in  cases  where  consul  brings  suit 
for  fees;  see  De  Lema  v.  Haldimand,  1824,  G.  B. 

Consuls  are  subject  to  the  jurisdiction  of  the  courts  of  the 
receiving  state;  sec  State  v.  De  La  Foret,  1820,  U.  S. 

*  Eiemptiona   from,   and   moflifications   of,   the   legal   procedure   accorded   to 
coniuls  BO  BB  not  to  hinder  the  discharge  of  their  functions. 

758 


COMPENDIUM 

In  the  case  of  a  civil  individual  suit,  ''of  which  the  judiciary- 
has  possession,  the  president  has  no  authority  to  interpose  in  the 
case,  either  by  arresting  the  proceedings,  by  punishing  the  plain- 
tiff, or  even  ordering  a  prosecution  against  him,  unless  the  step 
which  he  has  taken  be  in  violation  of  some  law  or  statute;"  see 
Atty.  Gen.  Vol.  I,  p.  407,  U.  S. 

Consul  subject  to  the  jurisdiction  of  the  receiving  state  civ- 
illy and  criminally ;  see  Atty.  Gen.  Vol.  I,  p.  410,  1820,  U.  S. 

Consuls  have  no  immunities  beyond  persons  coming  to  coun- 
try in  private  capacity  and  in  civil  and  criminal  cases,  they  are 
equally  subject  to  the  laws  of  the  receiving  state;  see  Atty.  Gen. 
Vol.  II,  p.  725,  1835,  U.  S. 

Nothing  in  the  convention  with  France  gives  the  consul  free- 
dom from  suit  in  the  American  courts;  see  Atty.  Gen.  Vol.  I,  p. 
77,  1797,  U.  S. 

Although  the  transaction  was  of  a  public  nature  concerning 
the  republic  of  France  and  the  consul-general  acted  as  the  com- 
mercial agent  of  the  republic,  "yet  the  president  of  the  United 
States  has  no  constitutional  right  to  interpose  his  authority,  but 
must  leave  the  matter  to  the  tribunals  of  justice;"  see  Atty.  Gen. 
Vol.  I,  p.  78,  1797,  IT.  S. 

Consul  is  subject  to  jurisdiction  of  receiving  state  even 
when  acting  offi<?ially;  see  Atty.  Gen.  Vol.  I,  p.  78,  1797,  U.  S. 

Though  "it  is  well  settled  in  the  United  States  as  in  Great 
Britain  that  a  person  acting  under  a  commission  from  the  sov- 
ereign of  a  foreign  nation  is  not  amenable  for  what  he  does  in 
pursuance  of  his  commission,  to  any  judiciary  tribunal  in  the 
United  States,"  nevertheless  the  executive  cannot  interpose  with 
the  judiciary  proceedings  between  an  individual  and  the  official 
holding  the  commission ;  see  Atty.  Gen.  Vol.  I,  p.  81,  1797,  U.  S. 

Procedure  to  be  followed  by  consul  who  wishes  to  plead  im- 
munity from  jurisdiction;  see  Atty.  Gen.  Vol.  I,  p.  407,  1820, 
V.  S. 

Lord  Ellenborough  thinks  that  as  consul  may  appoint  vice- 
consuls  to  perform  his  fimctions  no  great  inconvenience  would 
result  from  his  imprisonment ;  see  Viveash  v.  Becker,  1814,  G.  B. 

Consul  not  entitled  to  privilege  from  arrest;  see  Viveash  v. 
Becker,  1814,  G.  B. 

(B.)  Liability  of  consuls  to  arrest 

Consuls  are  not  public  ministers  and  are  subject  to  arrest 
for  debt;  see  Viveash  v.  Becker,  1814,  G.  B. 

759 


CONSULAR  I^OTUNITIES 

Discussion  of  consul's  liability  to  arrest  for  civil  process; 
see  Clarke  v.  Cretico,  1808,  G.  B. 

^lanslield  says  consul's  duties  are  not  such  as  can  be  per- 
formed in  prison ;  see  Clarke  v.  Cretico,  1808,  G.  B. 

Lord  Ellenborough  seems  to  infer  a  contrario  that  the  consul- 
general  is  entitled  to  immunity  from  arrest;  see  Marshall  v.  Cre- 
tico, 1808.  G.  B. 

Inununity  from  arrest  when  given  is  to  protect  the  interest 
of  sending  state  and  cannot  be  waived  by  consul — it  is  not  de- 
pendent upon  individuals  belief  that  he  is  a  consul  nor  upon  his 
acting  bona  fide  as  such — the  grant  of  the  immunity  is  dependent 
upon  its  use  to  the  sending  state;  see  Marshall  v.  Cretico,  1808, 
G.  B. 

(C.)  Giving  of  testimony 

See  United  States  v.  Trumbull,  1891,  U.  S.;  Biaz  v.  Molo, 
1899,  U.  S.;  (In  re)  Dillon,  1854,  U.  S. 

Consul  cannot  be  compelled  to  give  testimony  in  court  con- 
trary to  the  terms  of  the  treaty;  see  (In  re)  Billion,  1854,  U.  S.; 
Biaz  v.  Malo,  1899,  U.  S. 

"Officious"  letters  of  British  consuls  were  not  allowed  to  be 
read  in  court  when  the  United  States  government  felt  that  the 
British  government  was  attempting  to  violate  the  neutrality  laws 
of  the  United  States ;  see  Atty.  Gen.  Vol.  IX,  p.  469,  1860,  TJ.  S. 

"It  is  clear  that  he  (consul)  has  no  right,  by  any  rule  of 
public  law,  or  international  comity,  to  be  heard  in  the  case  by  the 
court,  otherwise  than  as  a  witness,  whether  enforced  or  volun- 
tar>';"  see  Atty.  Gen.  Vol.  VIII,  p.  470,  1855,  TJ.  S. 

(D.)  To  what  courts  consuls  in  the  United  States  are  subject. 

Exemption  from  jurisdiction  of  state  courts  is  a  privilege  of 
the  United  States  government  and  may  not  be  waived  by  the  con- 
.sul  or  his  government;  see  Valarino  v.  Thompson,  1853,  U.  S. 

The  effect  of  the  jurisdiction  of  federal  courts  is  that  the 
consul's  case  remains  within  the  control  of  the  general  govern- 
ment which  may  deal  with  it  according  to  the  convenience  or  the 
exigencies  of  its  foreign  policy,  without  impediment  from  the 
authority  of  any  of  thf^  individual  states  of  the  Union;  see  Atty. 
Gen.  Voi.  VU,  p.  384,  1855,  U.  S. 

Case  in  which  the  immunity  granted  a  consul  may  not  be 
waived  by  the  consul  and  reasons  why  consul  may  not  waive 
the  immunity ;  see  Marshall  v.  Cretico,  1808,  G.  B. 

7G0 


COMPENDIUM 

It  does  not  seem  to  be  decided  whether  the  privilege  of  jur- 
isdiction in  the  federal  courts  extends  to  citizens  of  the  United 
States,  consuls  for  foreign  states ;  see  Atty.  Gen.  Vol.  VIII,  p.  172, 
1856,  U.  S. 

Thorough  discussion  of  the  jurisdiction  of  state  and  federal 
courts  over  consuls ;  see  Mannhardt  v.  Soderstrom,  1806,  TJ.  S. 

In  a  case  where  a  civil  suit  was  brought  against  a  consul  he 
could  plead  to  jurisdiction  of  court  and  bring  the  question,  if 
he  chose,  before  the  supreme  court  of  the  nation;  see  Atty.  Gen. 
Vol.  I,  p.  407,  1820,  U.  S. 

Discussion  of  the  jurisdiction  of  the  federal  courts  over  con- 
suls; see  Cohens  v.  Virginia,  1821,  TJ.  S. 

(E.)  Cases  in  which  state  courts  were  declared  to  have  jurisdiction 
over  suits  concerning  consuls 

State  courts  have  jurisdiction  over  suits  brought  by  a  con- 
sul; see  Sagory  v.  Wissman,  1868,  U.  S. 

State  courts  have  jurisdiction  over  consuls;  see  State  v.  De 
la  Foret,  1820,  IT.  S. 

State  courts  have  jurisdiction  over  consuls  and  the  federal 
courts'  jurisdiction  is  not  exclusive;  see  Scott  v.  Hohe,  1900,  TJ.  S. 
The  jurisdiction  of  the  state  courts  in  criminal  suits  and  extradi- 
tion proceedings ;  see  (In  re)  lasigi,  1897,  TJ.  S. 

State  courts  have  jurisdiction  as  well  as  federal  courts;  see 
Redmond  v.  Smith,  1899,  TJ.  S. 

Federal  courts  do  not,  since  the  repeal  of  the  8th  clause  of 
section  711  of  revised  statutes,  have  exclusive  jurisdiction  over 
consuls  and  civil  suits  may  be  brought  against  them  in  state 
courts;  see  De  Give  v.  Grand  Rapids  Furniture  Company,  1894, 
U.  S. 

State  courts  have  concurrent  jurisdiction  over  consuls  since 
1875 ;  see  Wilcox  v.  Luco  50  Pac.  Rep.  758,  1897,  TJ.  S. 

Discussion  of  the  jurisdiction  of  state  and  federal  courts 
over  consuls ;  see  Cohens  v.  Virginia,  1821,  TJ.  S. 

If  constitution  were  interpreted  to  give  supreme  court  juris- 
diction in  cases  of  crimes  committed  by  consuls  it  would  defeat 
the  clause  directing  "that  all  crimes  shall  be  tried  in  the  state 
where  they  are  committed;"  see  Atty.  Gen.  Vol.  I,  p.  42,  1794, 
TJ.  S. 

State  courts  are  not  incompetent  when  a  consul,  who  is  sum- 
moned as  a  garnishee  is  put  in  the  attitude  of  a  defendant;  see 
Kidderlin  v.  Meyer,  1838,  TJ.  S. 

761 


CONSULAR  IMMUNITIES 
(F.)  State  courts  do  not  have  jurisdiction  over  consuls 

See  Mannhardt  v.  Soderstrom,  1806,  TJ.  S. ;  Saint  Luke's  Hos- 
pital V.  Barclay.  1855,  U.  S.;  Davis  v.  Packard,  1833,  U.  S.;  Boers 
V.  Preston.  1883.  TJ.  S. ;  Sartori  v.  Hamilton,  1832,  U.  S.;  Valarino 
V.  Thompson,  1853.  TJ.  S. ;  McKay  v.  Garcia,  1873,  TJ.  S. 

State  courts  have  no  jurisdiction  over  consuls  ever  since 
1875;  see  Wilcox  v.  Luce,  45  Pac.  Rep.  676  (reversed  in  Wilcox  v. 
Luco,  50  Pac.  Rep.  758),  1896,  TJ.  S. 

Competence  of  state  courts  to  continue  suit  when  defendant 
has  become  consul  since  its  commencement;  see  Coppell  v.  Hall, 
1868,  TJ.  S. 

Consuls  are  not  subject  to  state  courts;  see  Dissenting  Opin- 
ion in  State  v.  De  la  Foret,  1820,  TJ.  S. 

Consul  not  subject  to  jurisdiction  in  state  courts — Procedure 
to  be  followed  to  obtain  relief  when  suit  has  been  brought  against 
liini  in  a  state  court;  see  Durand  v,  Halbach,  1835,  TJ.  S. ;  Davis  v. 
Packard,  1833,  TJ.  S. 

Consul  cannot  be  examined  in  a  state  court  for  a  judgment 
debtor  and  he  cannot  be  attached  for  refusal  to  obey  an  order  for 
examination ;  see  Griffin  v.  Dominguez,  1853,  TJ.  S. 

One  object  of  the  provision  of  the  constitution  regarding 
suits  affecting  consuls  "was  to  prevent  the  harassing  of  foreign 
ministers  and  consuls  in  the  state  courts;"  see  (In  the  Matter  of) 
Aycinena,  1848,  TJ.  S. 

State  courts  do  not  have  jurisdiction  of  suits  affecting  con- 
suls; see  (In  the  Matter  of)  Aycinena,  1848,  TJ.  S. 

(G.)  Federal  courts  have  jurisdiction  over  consuls 

S.f  Bixby  v.  Janssen,  1869,  TJ.  S.;  Froment  v.  Duclos,  1887,  TT. 
S. ;  United  States  v.  Ravara,  1793,  TJ.  S. ;  Graham  v.  Stucken,  1857, 
TJ.  S. ;  Saint  Luke's  Hospital  v.  Barclay,  1855,  TJ.  S. ;  Boers  v. 
Preston,  1883.  TJ.  S. ;  Cohens  v.  Virginia,  1821,  TJ.  S.;  Atty.  Gen. 
Vol.  VII,  p.  22,  1854,  TJ.  S. 

A  case  against  a  person  for  assaulting  a  consul,  is  not  a  case 
"affecting  consuls"  under  the  con.stitution ;  see  United  States  v. 
Ortega.  1826.  TJ.  S. 

Fod'-ral  court  is  competent  even  when  consul  is  co-defend- 
ant; see  Valarino  v.  Thompson,  1853,  TJ.  S. 

"On  the  other  hand,  the  constitution  accords  to  every  foreign 
consul  the  privilf'gf  to  bring  suit  in  the  federal  courts;"  see  Atty. 
Gen.  Vol.  VIII.  p.  172.  1856,  U.  S. 

762 


COMPENDIUM 

Inferior  federal  courts  are  not  excluded  from  jurisdiction  in 
cases  concerning  a  consul ;  see  Gittings  v.  Crawford,  1838,  TJ.  S. 

Jurisdiction  of  the  circuit  court  over  consuls;  see  Pooley  v. 
Luco,  1896,  U.  S. 

(H.)  Right  of  consul  to  waive  jurisdiction  of  federal  courts  in  cases 
affecting  consuls 

A  consul  may  waive  his  right  to  have  suit  against  him  re- 
viewed by  the  federal  court ;  see  Wilcox  v.  Luco,  1896,  TJ.  S. 

A  consul  may  waive  his  exemption  from  the  jurisdiction  of 
the  state  courts  but  after  pleading  to  the  merits  he  cannot  avail 
himself  of  the  privilege  by  affidavit  upon  special  motion ;  see 
Flynn  v.  Stoughton,  1848,  IT.  S. 

Consul  may  waive  right  of  jurisdiction  by  federal  courts; 
see  Hall  v.  Young,  1825,  TJ.  S. 

Consul's  privilege  of  jurisdiction  by  the  federal  courts  is 
not  waived  by  failure  to  plead  his  exemption  from  the  jurisdic- 
tion of  the  state  courts ;  see  Miller  v.  Van  Loben  Sells,  1885,  TJ.  S. 

"Where  the  fact  that  the  defendant  is  a  consul  does  not  ap- 
pear upon  the  record,  it  is  a  waiver  of  the  right  to  jurisdiction  by 
the  federal  court ;  see  Hall  v.  Young,  1825,  TJ.  S. 

Exemption  of  consul  from  liability  to  be  sued  in  a  state 
court  is  not  a  privilege  of  the  consul  or  of  his  sovereign,  but  of 
the  United  States  government,  and,  therefore,  it  cannot  be  re- 
nounced by  the  consul;  see  Valarino  v.  Thompson,  1853,  TJ.  S. 

Reasons  M^hy  consul  may  not  waive  immunities;  see  Marshall 
V.  Critico,  1808,  G.  B. 

The  exemption  from  suit  in  state  courts  is  not  the  consul's 
personal  privilege — It  belongs  to  the  United  States  and  cannot  be 
waived  by  any  act  or  default  of  the  consul ;  see  Griffin  v.  Domin- 
guez,  1853,  TJ.  S. 

IMMUNITIES  OF  CONSULAR  AGENTS' 

Consular  agents  (trading  or  merchant  consuls)  have  no  right 
to  a  favored  treatment  in  matters  relating  to  their  mercantile 
transactions;  see  (The)  Charlotte,  1804,  G.  B.;  Albretcht  v.  Suss- 
man,  1813,  G.  B.;  (The)  Indian  Chief,  1800.  G.  B.;  (The)  Pioneer, 
1863,  U.  S.;  (The)  Josephine,  1801,  G.  B.;  (The)  President,  1804, 
G.  B. ;  (The)  Falcon,  1805,  G.  B. ;  Scott  v.  Hobe,  1900,  U.  S. 

^  Consular  agent  (agent  consulaire)  is  the  term  recommended  by  the  Institute 
of  International  Law  to  designate  consuls  having  some  occupation  besides  their 
consular  duties. 

763 


CONSULAR  IMMUNITIES 

Reasons  for  differentiating:  the  immunities  accorded  consuls 
and  consular  agents;  see  Atty.  Gen.  Vol.  VIII,  p.  174,  1856,  U.  S. 

Exemption  from  service  on  juries;  see  Atty.  Gen.  Vol.  VIII, 
p.  169.  1856,  TJ.  S. 

Exemption  from  military  duty  and  service  in  the  militia; 
see  Atty.  Gen.  Vol.  VIII,  p.  169,  1856,  TJ.  S. 

It  does  not  seem  to  be  decided  whether  the  privilege  of  jur- 
isdiction in  the  federal  courts  extends  to  citizens  of  the  United 
States,  consuls  for  foreign  states;  see  Atty.  Gen.  Vol.  VIII,  p.  172, 
1856,  IT.  S. 

:\reaning  of  term  ''Consular  Agent;"  see  Atty.  Gen.  Vol.  VII, 
p.  246  and  262,  1855,  TJ.  S. 


ORGANIZATION 


(A.)  Appointment 

Disadvantages  of  employing  consular  agent;  see  (The) 
Coriolanus,  1839,  U.  S. 

Advantages  of  employing  consular  agents;  see  Atty.  Gen. 
Vol.  Vn,  p.  262,  1855,  U.  S. 

"But  their  appointment  remained  unchangeably  one  of  the 
organic  powers  of  the  executive;  derived  from  the  constitution, 
not  from  any  act  of  congress;"  see  Atty.  Gen.  Vol.  VII,  p.  249, 
1855,  TJ.  S. 

Advantages  and  disadvantages  of  employing  consular 
agents ;  see  Atty.  Gen.  Vol.  VIII,  p.  174,  1856,  U.  S. 

"So  when,  by  the  late  convention  with  France,  or  any  other, 
it  is  said,  in  words,  that  officers  with  consular  functions  and 
rights,  vice-consuls  and  consular  agents,  may  be  appointed  by  the 
consul,  it  means  appointed  by  the  secretary  of  state  on  the  pre- 
sentation of  the  consul,  and  removable  by  the  same  authority;" 
see  Atty.  Gen.  Vol.  VII,  p.  276,  1855,  U.  S. 

Statutes  regarding  appointment  of  clerks  are  to  be  con- 
sidered as  rocDmrncndations  and  not  commands;  see  Atty.  Gen. 
Vol.  VII,  p.  265,  1855,  U.  S. 

American  consuls  have  not  authority  to  appoint  vice-consuls 
and  consular  agents;  see  Atty.  Gen.  Vol.  VII,  p.  276,  1855,  TJ.  S. 

romjiuTcial  agents,  fliaractcr  of  and  reasons  for  appointing; 
see  Atty.  Gen.  Vol.  VII,  p.  247,  1855,  TJ.  S. 

Lord  Ellenborough  thinks  that  as  consul  may  appoint  vice- 
consuls  to  perform  his  fimctions  no  great  inconvenience  would 
result  from  his  imprisonment;  see  Viveash  v.  Becker,  1814,  G.  B. 

764 


COMPENDIUM 

"I  am  unable  to  see  how  a  person  can  lawfully  execute  the 
duties  of  a  public  office  of  the  United  States  who  has  not  been 
clothed  with  authority  to  do  so  by  the  appointing  power  of  the 
United  States.  Such  a  person  cannot  possibly  have  any  virtue 
in  him  as  a  public  officer;"  see  Atty.  Gen.  Vol.  XX,  p.  92,  1891, 
TT.  S. 

Appointment  of  public  ministers;  see  Atty.  Gen.  Vol.  VII, 
p.  186,  1885,  ¥.  S. 

Expenses  of  the  funeral  of  consul  to  the  Barbary  States 
paid  by  son  acting  as  consul  are  a  lawful  charge  on  the  contin- 
gent fund.  If  those  expenses  were  proper  to  be  incurred,  and 
were  incurred  for  the  public  service  they  ought  to  be  repaid ;  see 
Atty.  Gen.  Vol.  II,  p.  523,  1832,  U.  S. 

Consul  must  take  oath  preceding  entry  upon  duties  to  be 
entitled  to  salary.  This  oath  cannot  be  taken  before  a  consul  of 
another  state ;  see  Otterbourg's  Case,  1869,  U.  S. 

Consul  appoints  a  successor  and  asks  the  charge  d'affaires  to 
ask  for  his  exequatur;  see  Sturgis  v.  Slacum,  1836,  TT.  S. 

Consul  general  for  Scotland  appointed  deputies.  Court  de- 
clared that  if  the  deputies  were  now  acting  it  would  be  a  "strong 
circumstance  to  affect  him  with  a  British  residence,  as  long  as 
there  are  persons  acting  in  an  official  station  here,  and  deriving 
their  authority  from  him;"  see  Dree  Gebroeders  v.  Vandyk,  1802, 
G.  B. 

(B.)  Salary 

See  Fees;  Regulations  concerning  fees. 

American  consuls  may  not  receive  presents,  even  photo- 
graphs; see  Atty.  Gen.  Vol.  XXIV,  p.  118,  1903,  V.  S. 

Salary  of  three  months  paid  to  widow  of  American  consuls 
dying  in  office ;  see  Atty.  (Jen.  Vol.  II,  p.  521,  1832,  TJ.  S. 

Claim  of  vice-consul  for  salary  of  consul  who  was  absent  on 
leave ;  see  Wilbor  v.  United  States,  1902,  U.  S. 

Case  in  which  court  declared  that  consul  has  no  right  to  re- 
ceive fees  when  acting  upon  instructions  from  his  government; 
see  De  Lema  v.  Haldimand,  1824,  G.  B. 

Salary  of  vice-consul  when  consul  is  absent;  see  Atty.  Gen. 
Vol.  VII,  p.  261,  1855,  V.  S. 

Consul  not  entitled  to  extra  pay  for  discharging  the  duties 
of  a  second  office  to  which  he  had  not  received  a  regular  ap- 
pointment as  authorized  by  law;  see  Atty.  Gen.  Vol.  IX,  p.  507, 
1860,  IT.  S. 

Son  of  consul  who  acts  as  de  facto  consul  whose  acts  have 
765 


ORGANIZATION 

been  recognized  by  his  government  should  receive  the  compensa- 
tion allowed  by  law ;  see  Atty.  Gen.  Vol.  II,  p.  523,  1832,  TJ.  S. 

Power  to  provide  salary  of  consul  in  congress  and  an  ad- 
vance in  salary  made  by  executive  uncollectible;  see  Byers  v. 
United  States,  1887,  U.  S. 

United  States  is  not  responsible  for  contract  made  by  consul 
for  services.  An  appointment  is  necessary  to  entitle  to  the  pay- 
ment of  a  salary ;  see  Azogne  v.  United  States,  1891,  U.  S. 

American  consul  removed  from  oflFice  before  the  end  of  the 
fiscal  year  is  only  entitled  to  retain  a  part  of  the  fees  collected 
proportional  to  the  part  of  the  fiscal  year  during  which  he  has 
held  office ;  see  Marston  v.  United  States,  1896,  U.  S. 

(C.)  Consular  hierarchy 

Rights  and  duties  of  consul-general;  see  Atty.  Gen.  Vol.  VII, 
p.  275.  1855,  U.  S. 

Enumeration  and  definition  of  various  classes  of  consular  of- 
ficers; see  Atty.  Gen.  Vol.  VII,  p.  247,  1855,  U.  S. 

"We  have  or  may  have  a  minister,  of  whatever  title,  who  is 
of  course,  by  public  law,  superior  in  rank  to  consuls,  and  their 
medium  of  communication  with  the  government ; ' '  see  Atty.  Gen. 
Vol.  VII,  p.  275,  1855,  U.  S. 

Special  character  and  immunities  of  consular  agent;  see 
Marshall  v.  Critico,  1808,  G.  B. 

Reason  for  differentiating  the  immunities  accorded  consuls 
and  consular  agents ;  see  Atty.  Gen.  Vol.  VIII,  p.  174,  1856,  U.  S. 

Competence  of  commercial  agent  to  take  acknowledgment 
under  the  law  of  Pennsylvania ;  see  Moore  v.  Miller,  1892,  U.  S. 

Officers  competent  to  perform  consular  duties;  see  Welsh 
V.  Hill,  1807,  U.  S. 

Duties  of  vice-consul ;  see  (In  re)  Herres,  1887,  U.  S. 

Duties  of  deputy  consul ;  see  (In  re)  Herres,  1887,  U.  S. 

Deputy  consul  may  take  acknowledgment  or  a  power  of  at- 
torney ;  see  Stewart  v.  Linton,  1902,  U.  S. 

Acts  which  a  consul  may  perform  by  procuration;  see  Atty. 
Gen.  Vol.  VHI,  p.  102,  1856,  U.  S. 

Consular  agents,  (or  merchant  consuls)  incompetent  to  give 
certificates  of  certain  matter  relating  to  seamen ;  see  (The)  Corio- 
lanus,  1839,  U.  S. 

President  has  power  by  statute  to  prescribe  a  tariff  of  fees 
for  official  services  only.  He  also  has  the  power  to  declare  what 
are  official  services.    Hence  when  he  perscrib^s  st  certain  fee  for 

766 


COMPENDIUM 

a  service  it  is  to  be  considered  as  declared  official;  see  Atty.  Gen. 
Vol.  XIX,  p.  198,  1888,  U.  S. 

"The  suggestion  and  the  request,  coming  from  the  depart- 
ment of  state,  were  practically  equivalent  to  a  direction  or  com- 
mand;" see  Leavitt  v.  United  States,  1888,  U.  S. 

Power  to  provide  salary  of  consul  is  in  congress  and  an  ad- 
vance in  salary  made  by  executive  uncollectible ;  see  Byers  v. 
United  States,  1887,  U.  S. 

A  vice  and  deputy  consul  has  authority  to  acknowledge  a 
power  of  attorney;  "for  while  he  acted  in  that  capacity  he  was 
entitled  to  exercise  the  authority  vested  by  law  in  the  consul  him- 
self ; "  see  Brown  v.  Landon,  1883,  U.  S. 

Consul  general  for  Scotland  appointed  deputies.  Court  de- 
clared that  if  the  deputies  were  now  acting  it  would  be  a  "  strong 
circumstance  to  affect  him  with  a  British  residence,  as  long  as 
there  are  persons  acting  in  an  official  station  here,  and  deriving 
their  authority  from  him;"  see  Dree  Gebraeders  v.  Vandyk,  1802, 
G.  B. 

Meaning  of  terms  "Commercial  Agent"  and  "Consular 
Agent;"  see  Schunior  v.  Russell,  1892,  U.  S. 

Consular  agent  is  the  representative  of  the  consul;  see  Gould 
V.  Staples,  1881,  U.  S. 

Consular  agents  are  not  consuls  or  commercial  agents  within 
the  meaning  of  the  law^s  regulating  the  consular  system  of  the 
United  States;  see  Atty.  Gen.  Vol.  XII,  p.  98,  1866,  U.  S. 

Consul  is  not  responsible  for  money  paid  to  clerk  under  di- 
rection of  state  department;  see  United  States  v.  Owen,  1891, 
U.  S. 

' '  The  consuls,  like  other  officers  of  the  United  States  are  sub- 
ject to  the  regulations  issued  by  the  proper  head  of  department;" 
see  Atty.  Gen.  Vol.  VII,  p.  249,  1854,  U.  S. 

Advantages  and  disadvantages  of  employing  consular  agents ; 
see  Atty.  Gen.  Vol.  VIII,  p.  174,  1856,  U.  S. 

Consul  may  act  by  procuration  where  caring  for  estates, 
etc. ;  see  Atty.  Gen.  Vol.  VIII,  p.  102,  1856,  U.  S. 

The  notarial  powers  of  a  provisional  British  consul;  see  (In 
re)  Darling,  1845,  G.  B. 

Enumeration  of  the  different  classes  and  varieties  of  con- 
sular officers ;  see  Atty.  Gen.  Vol.  VII,  p.  248,  1855,  U.  S. 

Character  of,  and  reasons  for  appointing  commercial  agents ; 
see  Atty.  Gen.  Vol.  VII,  p.  247,  1855,  U.  S. 

Meaning  of  term  "Consular  Agent;"  see  Atty.  Gen.  Vol.  VII, 
p.  246  and  262,  1855,  U.  S. 

767 


ORGANIZATION 

(D.)  Consular  regulations 

Power  of  the  president  to  make  regulations  to  govern  con- 
suls; see  Gould  v.  Staples,  1866,  TJ.  S. 

"They  (consuls)  like  other  executive  officers  of  the  United 
States  are  subject  to  regulations  issued  by  the  proper  head  of 
department;"  see  Atty.  Gen.  Vol.  VII,  p.  249,  1855,  U.  S. 

Power  of  the  president  to  determine  what  constitutes  an  of- 
ficial fee :  see  Atty.  Gen.  Vol.  XXIV,  p.  672,  1902,  U.  S. ;  United 
States  V.  Mosby,  1889.  U.  S. 

American  consuls  may  not  receive  presents;  even  photo- 
graphs; see  Atty.  Gen.  Vol.  XXIV,  p.  118,  1903,  U.  S. 

The  department  of  state  must  in  case  of  doubt  determine 
what  constitutes  an  official  fee  and  not  the  treasury  department ; 
see  United  States  v.  Badeau,  1887,  U.  S. 

Xo  service  is  unofficial  which  consul  has  no  right  to  refuse; 
see  Atty.  Gen.  Vol.  XXIV,  p.  672,  1903,  U.  S. 

Where  consul  collects  extra  wages  from  master  the  secretary 
of  the  treasury  can  only  review  the  arithmetical  accuracy  of  ac- 
count; see  Atty.  Gen.  Vol.  XVI,  p.  268,  1879,  U.  S. 

Statutes  regarding  appointment  of  clerks  are  to  be  con- 
sidered as  recommendations  and  not  commands;  see  Atty.  Gen. 
Vol.  VII,  p.  265,  1855,  U.  S. 

The  attorney-general  declared  that  in  a  judicial  case  in 
which  there  was  a  conflict  between  the  department  of  state  and 
the  district  court  as  to  the  meaning  of  the  word  "destitute"  con- 
tained in  the  statute  it  should  be  settled  by  the  courts;  see  Atty. 
Gen.  Vol.  XIX,  p.  25,  1887,  U.  S. 

The  president  has  power  by  statute  to  prescribe  a  tariff  of 
fees  for  official  services  only.  He  also  has  the  power  to  declare 
what  are  official  services.  Hence  when  he  perscribes  a  certain 
fee  for  a  service  it  is  to  be  considered  as  declared  official;  see 
Atty.  Gen.  Vol.  XIX,  p.  198,  1888,  U.  S. 

"American  consul  has  no  authority  except  what  may  be 
expressly  granted  by  a  law  of  congress,  and  acknowledged  by  the 
government  in  whose  jurisdiction  he  resides;"  see  Atty.  Gen. 
Vol.  XIX,  p.  197,  1888,  U.  S. 

"  Feos  for  certificates  to  consular  invoices  may  be  rendered 
official  by  executive  order,  and  specially  included  in  the  tariff  of 
official  fees;"  see  Atty.  Gen.  Vol.  XIX,  p.  229,  1889,  U.  S. 

"The  construction  given  to  a  statute  by  those  charged  with 
the  duty  of  executing  it  is  always  entitled  to  the  most  respectful 

768 


COMPENDIUM 

consideration  and  ought  not  to  be  overruled  without  cogent  rea- 
sons;" see  Atty.  Gen.  XIX,  p.  228,  1887,  U.  S. 

Interpretation  put  upon  statute  by  the  executive  entrusted 
with  its  enforcement  presumed  to  be  correct;  see  Atty  Gen.  Vol. 
XXII,  p.  163,  1898,  U.  S. 

"The  suggestion  and  the  request,  coming  from  the  depart- 
ment of  state,  were  practically  equivalent  to  a  direction  or  com- 
mand ;  see  Leavitt  v.  United  States,  1888. 

By  the  act  of  1856  a  consul  cannot  exercise  diplomatic  func- 
tions without  authorization  from  president;  see  Otterbourg's 
Case,  1869,  TJ.  S. 

"By  affixing  his  signature  to  an  act  or  a  treaty  containing 
such  phrase,  the  president  does  not  effect  any  change  in  the 
constitution;"  see  Atty.  Gen.  Vol.  VII,  p.  276,  1855,  U.  S. 

In  applying  the  statutes  the  president  must  take  into  con- 
sideration the  other  statutes  which  might  conflict  and  the  nature 
of  the  consuls  duties ;  see  Atty.  Gen.  Vol.  VII,  p.  267,  1855,  IT.  S. 

Application  of  the  act  of  1855;  see  Atty.  Gen.  Vol.  VII,  p. 
242,  1855,  U.  S. 

Consuls,  subject  to  regulations  issued  by  the  proper  head  of 
department ;  see  Atty.  Gen.  Vol.  VII,  p.  249,  1855,  TJ.  S. 

(E.)  Regulations  and  jurisprudence  relating  to  consular  fees 

Protection  of  individuals  against  payment  of  consular  fees 
not  due ;  see  De  Lema  v.  Haldimand,  1824,  G.  B. 

Determination  of  official  fees;  see  United  States  v.  Eaton, 
1898,  U.  S. 

Determination  of  official  fees  as  distinguished  from  unof- 
ficial fees;  see  United  States  v.  Mosby,  1889,  U.  S. 

British  court  declared  that  a  consul  may  not  recover  fees  in 
a  case  where  he  acted  for  his  government ;  see  De  Lema  v.  Haldi- 
mand, 1824,  G.  B. 

The  fees  taken  for  the  acknowledgment  of  an  affidavit,  etc., 
are  not  official ;  see  United  States  v.  Badeau,  1887,  U.  S. 

The  department  of  state  must  determine  what  constitutes  an 
official  fee ;  see  United  States  v.  Badeau,  1887,  U.  S. 

A  consul  may  recover  before  the  final  settlement,  fees  paid 
in  under  the  impression  that  they  belonged  to  the  government; 
see  United  States  v.  Owen,  1891,  U.  S. 

Amount  of  fees  which  consuls  might  formerly  retain ;  see 
Atty.  Gen.  Vol.  XII,  p.  527,  1868,  U.  S. 

Fees  and  accounts  of  consular  agents;  see  Atty.  Gen.  Vol. 
XII,  p.  100,  1866,  U.  S. 

769 


ORGANIZATION 

Regulations  governing  fees  of  American  consuls;  see  Atty. 
Gen.  Vol.  VII,  p.  258,  1855,  U.  S. 

Classification  of  fees;  see  Atty.  Gen.  Vol.  VII,  p.  260,  1855, 
U.  S. 

Fees  received  by  a  consul  for  care  of  an  estate  are  official 
fees;  see  United  States  v.  Slocum,  1836,  U.  S. 

The  president  has  power  by  statute  to  prescribe  a  tariff  of 
fees  for  official  services  only.  He  also  has  the  power  to  declare 
what  are  official  services.  Hence  when  he  perscribes  a  certain 
fee  for  a  service  it  is  to  be  considered  as  declared  official;  see 
Atty.  Gen.  Vol.  XIX,  p.  198,  1888,  U.  S. 

' '  Fees  for  certificates  to  consular  invoices  may  be  rendered 
official  by  executive  order,  and  specially  included  in  the  tariff 
of  official  fees;"  see  Atty.  Gen.  Vol.  XIX,  p.  229,  1889,  U.  S. 

"The  construction  given  to  a  statute  by  those  charged  with 
the  duty  of  executing  it  is  always  entitled  to  the  most  respect- 
full  consideration  and  ought  not  to  be  overruled  without  cogent 
reasons;"  see  Atty.  Gen.  XIX.  p.  228,  1889,  U.  S. 

Amount  of  consular  fees  allowed  to  consular  agent  and  con- 
sul.— Interpretation  put  upon  statute  by  the  executive  entrusted 
with  its  enforcement  presumed  to  be  correct;  see  Atty.  Gen.  Vol. 
XXII,  p.  163,  1898,  U.  S. 

Fees  of  consuls  for  the  care  of  estates;  see  Atty.  Gen.  Vol. 
VII,  p.  255-259,  1855,  TJ,  S. 

A  consul  in  China  is  entitled  to  fees  collected  for  shipping 
and  discharging  seamen  on  foreign  built  vessel  sailing  under  the 
American  flag;  see  Goldsborough  v.  United  States,  1889,  U.  S. 

Where  consul  seeks  to  recover  fees  for  certifying  invoices  of 
non-dutiable  goods  there  must  be  certainty  in  the  number  of 
such  invoices  else  claim  irrecoverable;  see  Goldsborough  v.  United 
States,  1889,  U.  S. 

American  consul  removed  from  office  before  the  end  of  the 
fiscal  year  is  only  entitled  to  retain  a  part  of  the  fees  collected 
proportional  to  the  part  of  the  fiscal  year  which  he  has  held  of- 
fice; see  Marston  v.  United  States,  1896,  U.  S. 

(Syllabus)  If  the  president  directs  the  collection  of  fees  il- 
legally, the  owner  may  have  a  right  of  recovery  against  the  gov- 
ernment ;  but  the  officer  who  performs  the  service  and  collects 
the  fees  has  no  claim  to  the  money;  see  Stahel  v.  United  States, 
1891,  U.  S. 

(F.)  Relations  of  different  departments 

The  attorney-general  declared  that  in  a  judicial  case  in 
which  there  was  a  conflict  between  the  department  of  state  and 

770 


COMPENDIUM 

the  district  court  as  to  the  meaning  of  the  word  "destitute"  con- 
tained in  the  statute,  it  should  be  settled  by  the  courts ;  see  Atty. 
Gen.  Vol.  XIX,  p.  25,  1887,  II.  S. 

Conflicts  between  different  departments  of  the  government; 
see  Atty.  Gen.  Vol.  XIX,  p.  25,  1887,  U.  S. 

Power  to  provide  salary  of  consul  is  in  congress  and  an  ad- 
vance in  salary  made  by  executive  uncollectible;  see  Byers  v. 
United  States,   1887,  U.  S. 

(G.)  Means  to  compel  consul  to  discharge  his  duties 

Responsibility  of  consul  towards  individuals;  see  (The)  At- 
lantic, 1849,  U.  S.;  Gould  v.  Staples,  1881,  U.  S.;  Jordan  v.  Wil- 
liams, 1851,  U.  S. 

Consul  may  refuse  to  do  certain  acts  where  fee  exacted  is  not 
official  fee ;  see  Mosby  v.  United  States,  1888,  U.  S. 

Liability  of  consul  for  misappropriation  of  wages  of  seamen ; 
see  Hindsgaul  v.  (The)  Lyman  D.  Foster,  1898,  U.  S. 

Recovery  of  seamen  of  charges  for  their  imprisonment  at  the 
order  of  the  consul;  see  Chester  v.  Benner,  1871,  U.  S. 

It  is  an  indictable  felony  for  consul  not  to  pay  a  draft 
lawfully  drawn  upon  him  for  public  moneys  in  his  hands;  see 
Atty.  Gen.  Vol.  VII,  p.  257,  1855,  U.  S. 

The  discretionary  power  given  by  statutes  to  consuls  regard- 
ing the  discharge  of  seamen  is  not  reviewable  except  by  some  com- 
petent court ;  see  Atty.  Gen.  Vol.  XVI,  p.  268,  1879,  U.  S. 

Where  consul  collects  extra  wages  from  master  the  secretary 
of  the  treasury  can  only  review  the  arithmetical  accuracy  of  ac- 
count ;  see  Atty.  Gen.  Vol.  XVI,  p.  268,  1879,  U.  S. 

* '  Attestation  is  not  necessary  to  a  consular  bond ; "  see  Atty. 
Gen.  Vol.  I,  p.  378,  1820,  U.  S. 

(H.)  Responsibility  of  government  for  acts  of  consul 

See  also  Official  Acts. 

United  States  is  not  responsible  for  acts  done  by  the  consul 
in  so  far  as  he  may  have  exceeded  his  authority;  see  Atty.  Gen. 
Vol.  VI,  p.  626,  1854,  U.  S. 

A  consul  who  purchased  articles  as  suggested  in  a  letter  from 
a  representative  of  the  department  of  state  is  entitled  to  payment 
even  though  the  appropriation  made  for  that  purpose  be  ex- 
hausted ;  see  Leavitt  v.  United  States,  1888,  U.  S. 

"United  States  is  not  liable  to  its  citizens  for  the  conse- 

771 


ORGANIZATION 

qiienees  of  the  wrongs  or  shortcomings  of  its  officers;"  see  Atty. 
Gen.  Vol.  XIX,  p.  24,  187,  U.  S. 

United  States  is  not  responsible  for  a  contract  made  by  con- 
sul for  services;  see  Azogue  v.  United  States,  1891,  TJ.  S. 

In  an  action  brought  against  the  United  States  for  wages  for 
services,  court  of  claims  held  that  the  consul's  agreement  with 
plaintiff  did  not  make  the  United  States  a  party  to  the  contract ; 
see  Azogne  v.  United  States,  1891,  U.  S. 

MUNICIPAL  LEGISLATION' 

Responsibility  of  consul  for  his  official  acts;  see  Jordan  v. 
"Williams.  1851,  U.  S. 

A  consul  is  not  responsible  for  money  paid  clerk  under  di- 
rection of  state  department;  see  United  States  v.  Owen,  1891, 
U.  S. 

Consuls  bring  suit  against  master  for  refusal  to  take  sea- 
men on  board;  see  Matthews  v.  Offley,  1837,  U.  S. 

American  consul  abroad  has  no  privilege  of  jurisdiction  and 
may  be  sued  in  American  courts;  see  Caldwell  v.  Barclay,  1783, 
U.  S. 

Consul  is  presumed  to  have  an  official  character  for  the  per- 
formance of  certain  acts  without  proof  of  his  signature;  see  St. 
John  V.  Croel,  1843,  U.  S. 

Proof  of  the  consular  seal;  see  Church  v.  Hnbbard,  1804,  U. 
S. ;  St.  John  v.  Croel,  1843,  U.  S. 

Suit  to  compel  master  to  deposit  ship's  papers;  see  Toler  v. 
White,  1834,  U.  S. 

"Masters  of  American  vessels  are  subject  to  prosecution  in 
the  name  of  the  consul  for  omission  to  deposit  with  him  the 
papers  according  to  law,  but  not  to  indictment;"  see  Atty.  Gen. 
Vol.  Vn,  p.  395,  1855,  U.  S. 

State  court  decides  as  to  the  legality  of  an  oath  administered 
by  a  consul ;  see  Seidel  v.  Peschkaw,  1859,  U.  S. 

The  discretionary  power  given  by  statute  to  consuls  regard- 
ing the  di.scharge  of  seamen  is  not  reviewable  except  by  some 
competent  court ;  see  Atty.  Gen.  Vol.  XVI,  p.  268,  1879,  U.  S. 

"Where  consul  collects  extra  wages  from  master  the  secretary 
of  the  treasury  can  only  review  the  arithmetical  accuracy  of 
account ;  see  Atty.  Gen.  Vol.  XVI,  p.  268,  1879,  U.  S. 

'Municipal  lepiHlation  and  jurisprudence  to  compel  nationals  to  conform  to 
tie  consular  regulations  and  to  facilitate  the  fulfilment  by  consuls  of  their 
functions. 

772 


COMPENDIUM 

A  consul  who  purchased  articles  as  suggested  in  a  letter  from 
a  representative  of  the  department  of  state  is  entitled  to  payment 
even  though  the  appropriation  made  for  that  purpose  be  ex- 
hausted ;  see  Leavitt  v.  United  States,  1888,  TJ.  S. 

Lord  Hardwiche  said  he  considered  a  consul  a  land  or  sea 
officer  in  the  service  of  his  majesty  and  he  would  not  therefore 
grant  the  application  that  he,  when  plaintiff,  must  give  security 
to  answer  costs  according  to  the  course  of  the  court;  see  Cole- 
brook  V.  Jones,  1751,  Qt.  B. 

"When  American  consul  suspected  the  papers  of  a  ship  to  be 
fraudulent  he  called  upon  a  vessel  of  war  of  his  nation  to  seize 
it ;  see  Atty.  Gen.  Vol.  Ill,  p.  405,  1839,  TJ.  S. 


ESTABLISHMENT  OF  CONSULS 


Discussion  of  what  establishment  of  a  consul  depends  upon ; 
see  Arnold  v.  (The)  United  Insurance  Company,  1800,  U.  S. 

The  appointment  of  a  consul  at  Port-au-Prince  would  have 
the  effect,  according  to  international  usage,  of  placing  the  Hay- 
tian  empire  in  diplomatic  relations  with  the  United  States;  see 
Atty.  Gen.  Vol.  VII,  p.  250,  1854,  U.  S. 

Consuls  of  the  North  German  Union  recognized  as  consuls 
for  any  of  the  separate  states;  see  (Ex  parte)  Newman,  1871,  U.  S. 

The  grant  of  the  exequatur  is  not  retroactive  in  its  effect; 
see  (The)  Adolph,  1851,  U.  S. 

The  appointment  of  vice-consul  by  a  consul  and  the  making 
of  emergency  appointments;  see  United  States  v.  Eaton,  1898, 
U.S. 

The  terms  of  the  exequatur  should  be  consulted  to  ascer- 
tain the  territorial  limits  within  which  the  consul  may  perform 
certain  functions ;  see  Atty.  Gen.  Vol.  VIII,  p.  102,  1856,  U.  S. 

Limits  within  which  consul  may  exercise  certain  functions; 
see  Atty.  Gen.  Vol.  VIII,  p.  102,  1856,  U.  S. 

Court  declared  that  the  old  practice  allowing  the  swearing 
of  affidavits  before  notaries  was  still  in  force  in  a  case  where  no 
British  consul  and  no  notary  or  other  official  present  before  whom 
it  could  have  been  sworn  was  within  many  hundred  miles;  see 
(In  re)  Darling,  1845,  G.  B. 

Consul's  commission  usually  directed  to  the  sovereign  of  the 
receiving  state ;  see  Barbuit's  Case,  1737,  G.  B. 

Fimctions  of  consuls  as  recited  in  the  commission;  see  Bar- 
buit's Case,  1737,  G.  B. 

773 


ESTABLISHMENT 

Form  of  commission  of  a  consul  of  Oldenburg  given ;  see 
Viveash  v.  Becker,  1814,  Ct.  B. 

Grant  of  the  exequatur  of  the  consul  of  Oldenburg  by  noti- 
fication in  the  Loudon  Gazette  of  March  12,  1814;  see  Viveash  v. 
Becker,  1814,  G.  B. 

' '  I  am  unable  to  see  how  a  person  can  lawfully  execute  the 
duties  of  a  public  office  of  the  United  States  who  has  not  been 
clothed  with  authority  to  do  so  by  the  appointing  power  of  the 
United  States.  Such  a  person  cannot  possibly  have  any  virtue  in 
him  as  a  public  officer;"  see  Atty.  Gen.  Vol.  XX,  p.  92,  1891, 
TJ.  S. 

Consul  general  for  Scotland  appointed  deputies;  see  Dree 
Gebroeders  v.  Vandyk,  1802,  G.  B. 

Consul  appoints  a  successor  and  asks  the  charge  d'affaires 
to  ask  for  his  exequatur ;  Sturgis  v.  Slacum,  1836,  U.  S. 


TERMINATION 


The  president  has  the  undoubted  power  in  his  discretion  to 
withdraw  the  exequatur  of  any  foreign  consul;  see  Atty.  Gen. 
Vol.  VII,  p.  385,  1855,  TJ.  S. 

Consul  is  not  entitled  to  immunities  after  his  dismissal  by 
sending  state,  even  though  his  exequatur  has  not  been  with- 
dra\Mi ;  see  Marshall  v.  Critico,  1808,  G.  B. 

In  the  case  of  The  Hope  consul  seems  to  have  remained  in 
the  enemy's  territory  after  the  outbreak  of  hostilites;  see  (The) 
Hope,  1813,  G.  B. 

The  consul's  privileges  must  be  accorded  as  long  as  his  ex- 
equatur is  not  withdra\\Ti ;  see  United  States  v.  Trumball,  1891, 
TJ.  S. 

Payment  of  funeral  expenses  of  deceased  American  consul; 
see  Atty.  Gen.  Vol.  II,  p.  521,  1832  TJ.  S. 

A  consul 's  office  was  abolished  by  the  disappearance  of  the 
sovereignty  from  which  he  had  received  his  exequatur;  see 
Mahoney  v.  United  States,  1869,  U.  S. 

Consul  may  cease  to  be  a  consul  before  his  exequatur  has 
been  withdrawn ;  see  Hall  v.  Young,  1825,  U.  S. 


NATL'RE  OF  CONSULAR  OFFICE 


See  Barbuit's  Case,  1737,  G.  B. ;  Clark  v.  Cretico,  1808,  G.  B.; 
Courtney,  1810,  G.  B. ;  Davis  v.  Leslie,  1848,  U.  S.;  Gittings  v. 
Crawford,  1838,  U.  S.;  Gernon  v.  Cochran,  1804,  U.  S.;  Heathfield 

774 


COMPENDIUM 

V.  Chilton,  1767,  G.  B.;  Herzogin  Marie,  1861,  G.  B.;  (The)  Infanta, 
1848,  U.  S.;  (In  re)  Kaine,  1852,  TJ.  S.;  Marshall  v.  Critico,  1808, 
G.  B. ;  Seidel  v.  Peschkaw,  1859,  U.  S. ;  State  v.  De  La  Foret,  1820, 
TJ.  S.;  United  States  v.  Lucinario,  1906,  TJ.  S.;  Wilhelm  Frederick 
(especially  the  argument  of  counsel  who  was  Phillimore),  1823, 
G.  B. 

(A.)  Various  opinions  of  the  nature  of  the  consular  office 

Representative  character  of  consuls  and  cases  in  which  courts 
speak  of  consuls  as  representatives;  see  (The)  Courtney,  1810,  G. 
B. ;  Davis  v.  Leslie,  1848,  TJ.  S. ;  (The)  Herzogin  Marie,  1861,  G.  B. ; 
(The)  Infanta,  1847,  U.  S.;  Marshall  v.  Critico,  1808,  G.  B.;  Seidel 
V.  Peschkaw,  1859,  U.  S.;  (The)  Wilhelm  Frederick,  1823,  G.  B. 

Authorities  whose  writings  have  influenced  English  judi- 
cial opinion  of  the  character  of  consuls ;  see  Barbuit's  Case,  1737, 
G.  B. ;  Heathfield  v.  Chilton,  1767,  G.  B. 

A  consul  is  not  merely  a  commercial  agent ;  see  Atty.  Gen, 
Vol.  VI,  p.  20,  1854,  TJ.  S. 

A  consul  is  a  magistrate  and  derives  authority  from  both 
governments;  see  Scanlan  v.  Wright,  1833,  TJ.  S. 

That  a  consul  has  a  certain  magisterial  character  is  shown 
by  the  decision ;  see  (In  re)  Daly,  1841,  G.  B. 

A  consul  is  not  a  magistrate;  see  Davy  v.  Maltwood,  1841, 
G.  B. 

A  consul  is  not  a  judicial  officer;  see  Waldron  v.  Coombe, 
1810,  G.  B. 

A  consul  has  certain  judicial  functions ;  see  Barbuit's  Case, 
1737,  G.  B. 

The  difference  between  a  consul  and  diplomatic  agent  is  in- 
dicated in  the  case  of  Von  Thodorovich  v.  Franz  Josef  Beneficial 
Association,  1907,  TJ.  S. 

Consuls  replace  state  officials  for  the  performance  of  certain 
acts  as  for  taking  acknowledgment  of  deeds ;  see  St.  John  v.  Croel, 
1843,  TJ.  S. 

Consuls  carry  out  provisions  of  state  laws  when  certifying 
to  the  official  character  of  officials  of  the  receiving  state;  see 
(Succession  of)  Wedderburn,  1841,  TJ.  S. 

"If  the  attestation  of  the  signature,  and  right  of  the  person 
who  administered  the  oaths,  were  duly  certified  under  the  seal 
of  a  responsible  officer,  whose  appropriate  duty  it  was  to  give 
such  certificate,  it  might  be  received,  so  far  as  the  authentication 
goes,  as  prima  facie  evidence,  though  not  under  the  great  seal  of 
the  state;"  see  Stein  v.  Bowman,  1839,  TJ.  S. 

775 


NATURE  OF  CONSULAR  OFFICE 

"If,  indeed,  being  a  subject  of  the  state,  he  has  power  as  a 
local  magistrate  to  solemnize  marriage,  or,  being  a  foreigner,  he 
has  the  same  power  as  clergyman,  he  may  do  it,  but,  in  either 
case,  not  in  his  capacity  as  consul;  see  Atty,  Gen.  Vol.  VII,  p.  343, 
1855,  TJ.  S. 

Consul  of  Oldenburg  charged  with  the  duty  of  looking  after 
prizes  and  nationals  detained  as  prisoners  of  war  and  making  the 
necessary  intercessions  before  the  proper  tribunals  to  procure 
them  their  liberty ;  see  Viveash  v.  Becker,  1814,  G.  B. 

Consul's  functions  "are  purely  of  a  commercial  nature,  and 
such  as  properly  belonging  to  a  consul,  those  of  advice  and  in- 
tercession and  there  is  no  one  function  of  state  purposed  to  be 
performed  by  him  as  representing  the  sovereign  of  his  state;" 
see  Viveash  v.  Becker,  1814,  G.  B. 

"American  consul  has  no  authority  except  what  may  be  ex- 
pressly granted  by  a  law  of  congress,  and  acknowledged  by  the 
government  in  whose  jurisdiction  he  resides;"  see  Atty.  Gen.  Vol. 
XIX,  p.  197,  1888,  U.  S. 

Consuls  are  not  public  ministers  but  enjoy  certain  privi- 
leges such  as  for  safe  conduct ;  see  Viveash  v.  Becker,  G.  B. 

"I  am  unable  to  see  how  a  person  can  lawfully  execute  the 
duties  of  a  public  office  of  the  United  States  who  has  not  been 
clothed  with  authority  to  do  so  by  the  appointing  power  of  the 
United  States.  Such  a  person  cannot  possibly  have  any  virtue  in 
him  as  a  public  officer;"  see  Atty.  Gen.  Vol.  XX,  p.  92,  1891,  TJ.  S. 

It  may  be  that  the  laws  of  a  state  of  the  United  States  give 
validity  to  certain  services  performed  by  consuls;  see  Atty.  Gen. 
Vol.  XX,  p.  92,  1891,  U.  S. 

The  value  of  unofficial  services  customarily  performed  by 
consuls  depends  entirely  upon  the  fact  that  the  person  rendering 
them  is  a  consular  officer;  see  Atty.  Gen.  Vol.  XX,  p.  92,  1891, 
TJ.  S. 

The  efficacy  of  the  act  may  be  due  to  the  faith  generally  re- 
posed in  consular  officers;  see  Atty.  Gen.  Vol.  XX,  p.  93,  1891, 
TJ.  S. 

Extent  to  which  a  consul  representing  an  other  consul  with- 
drawn by  reason  of  war  is  a  consul  of  the  belligerent  state;  see 
Atty.  Gen.  Vol.  XXII,  p.  75,  1898,  TJ.  S. 

"A  corr('si)on(lcnce  ensued  between  the  captain  general  of 
Cuba  and  Mr.  Trist,  (United  States  consul),  which  terminated  in 
a  friendly  disposition  of  the  question,  whether  the  seizure  of  the 
ves-sel  in  the  port  of  Havana  was  a  violation  of  the  jurisdictional 
rights  of  Spain;"  see  Atty.  Gen.  Vol.  Ill,  p.  406,  1839,  TJ.  S. 

776 


COMPENDIUM 

"Supported  by  such  authorities,  I  think  it  may  be  safely 
assumed  that  a  consul  is  not  a  public  minister  within  the  mean- 
ing of  our  act,  (act  of  April  30,  1790)  which  is  that  of  the  gen- 
eral law  of  nations;"  see  Atty.  Gen.  Vol.  I,  p.  409,  1820,  U.  S. 

Whether  a  consul  is  or  is  not  a  public  minister  may  be  a  mere 
dispute  about  words,  in  the  abstract,  but  in  relation  to  our  act 
of  congress  (April  30,  1790,)  the  question  becomes  a  material 
question  of  things,  and  not  merely  of  words;  see  Atty.  Gen.  Vol. 
I,  p.  409,  1820,  U.  S. 

Insults  offered  by  a  tumultuous  crowd  to  the  consul  before 
his  residence  are  not  covered  by  the  act  of  April  30,  1790,  which 
punishes  for  any  infraction  of  the  laws  of  nations,  by  offering 
violence  to  the  person  of  an  ambassador  or  other  public  ministers 
as  consul  is  not  a  public  minister;  see  Atty.  Gen.  Vol.  I,  p.  42, 
1794,  TT.  S. 

Consul  made  charge  d'affaires  becomes  invested  with  full 
diplomatic  privileges,  "yet  becomes  so  invested  as  charge  d' 
affaires  not  as  consul,  and  the  fact  of  such  casual  duplicature  of 
functions  does  not  change  the  legal  status  of  consuls,  whether 
they  be  regarded  through  the  eye  of  the  law  of  nations  or  that 
of  the  United  States;"  see  Atty.  Gen.  Vol.  VII,  p.  345,  1855,  TT.  S. 

Marshals  are  not  required  by  law  to  execute  the  sentence  of 
a  French  consul,  arising  under  the  12th  article  of  the  convention 
with  France ;  see  Atty.  Gen.  Vol.  I,  p.  43,  1794,  TT.  S. 

Consuls  are  not  public  ministers  and  are  not  invested  with 
any  representative  character;  see  Atty.  Gen.  Vol.  I,  p.  42,  1794, 
TJ.  S. 

Elevated  character  of  the  consular  office;  see  Oscanyan  v. 
Arms  Co.,  1880,  TJ.  S. 

Official  character  of  consul's  acts  when  ordering  survey  of 
vessel  and  sale  at  auction.  Like  a  trustee  he  is  inhibited  from 
acquiring  an  interest  in  the  property;  see  Riley  v.  The  Obeli 
Mitchell,  1861,  TT.  S. 

A  vice  and  deputy  consul  has  authority  to  acknowledge  a 
power  of  attorney ;  ' '  for  while  he  acted  in  that  capacity  he  was 
entitled  to  exercise  the  authority  vested  by  law  in  the  consul 
himself;"  see  Brown  v.  Landon,  1883,  TJ.  S. 

Lord  Hardwiche  said  he  considered  a  consul  a  land  or  sea 
officer  in  the  service  of  his  majesty  and  he  would  not  therefore 
grant  the  application  that  he,  when  plaintiff,  must  give  security 
to  answer  costs  according  to  the  course  of  the  court;  see  Cole- 
brook  v.  Jones,  1751,  G.  B. 

"It  cannot  be  conceived  that  the  general  government  sends 

777 


NATURE  OF  CONSULAR  OFFICE 

representatives  abroad  for  the  purpose  of  acting  as  the  executive 
officers  of  the  different  state  courts  in  the  Union.  It  is  true  that 
those  representatives  sometimes  act  as  ministerial  officers  of  such 
courts,  as  for  instance,  to  procure  testimony,  and  the  like ;  but 
they  do  so  with  the  special  authority  of  state  legislation,  provid- 
ing distinctly  for  such  cases;"  see  Interdiction  of  Joseph  Dumas, 
1880,  U.  S. 

"Or,  in  the  absence  of  such  person  by  the  official  represen- 
tative of  the  foreign  government;"  see  Grin  v.  Shine,  1902,  IT.  S. 

"A  consul  of  the  United  States  is  authorized  to  take  at  his 
consulate  an  acknowledgment  of  a  deed  to  realty  situated  in  this 
state,  and  his  certificate,  under  official  seal,  is  evidence  of  such 
acknowledgment;"  see  Long  v.  Powell,  1904,  TJ.  S. 

^Mexican  consul  makes  complaint  under  oath  to  secure  extra- 
dition. His  official  character  must  be  taken  as  sufficient  evi- 
dence of  his  authority,  and  as  the  government  he  represented  was 
the  real  party  interested  in  resisting  the  discharge,  the  appeal 
was  properly  prosecuted  by  him  in  its  behalf;  see  Ornelas  v. 
Ruiz.  1895,  TJ.  S. 

Nature  of  American  consul's  action  when  administering  an 
estate;  see  Sturgis  v.  Slacum,  1806,  TJ.  S. 

In  the  course  of  the  administration  of  an  estate  the  French 
consul  was  entitled  to  be  heard  by  the  court,  not  as  a  party  but 
informally,  as  the  national  agent  of  supposedly  interested  par- 
ties; see  Ferrie  v.  The  Public  Administration,  1855,  TJ.  S. 

Consul  even  though  sometimes  allowed  to  engage  in  com- 
mercial pursuits,  is  so  far  the  public  agent  of  his  state  and  its 
"commercial  representative  that  he  is  precluded  from  under- 
taking any  affairs  or  assuming  any  position  in  conflict  with  its 
interests  or  its  policy;"  see  Oscanyan  v.  Arms  Company,  1880,  TJ.  S. 

Consul  is  a  representative  of  the  United  States  within  the 
meaning  of  the  act  of  1853  and  hence  has  authority  to  administer 
an  oath;  see  Seidel  v.  Peschkaw,  1859,  TJ.  S. 

"By  all  governments  his  [the  consul's]  representative  char- 
acter is  recognized  and  for  that  reason  certain  exemptions  and 
privileges  are  granted  him;"  see  Oscanyan  v.  Arms  Company, 
1880,  TJ.  S. 

Character  of  the  consular  ofiTice ;  see  Seidel  v.  Peschkaw,  1859, 
U.  S. 

(B.)  Whether  consul  is  a  functionary  of  the  receiving  state  as  well 

as  of  the  sending  state 

Con.sul  derives  his  authority  also  from  receiving  state;  see 
Scanlan  v.  Wright,  1833,  TJ.  S. 

778 


COMPENDIUM 

A  consul  is  not  a  functionary  of  the  receiving  state;  see 
Herman  v.  Herman,  1825,  TJ.  S. 

Mansfield  discusses  the  nature  of  the  consul's  act  when  he 
sells  damaged  goods  in  receiving  state  and  compares  him  to  an 
auctioneer;  see  Waldron  v.  Coombe,  1810,  G.  B. 

Consul  is  an  agent  of  the  receiving  state  (Brazil)  directed 
by  laws  to  sell  damaged  goods;  see  Waldron  v.  Coombe,  1810,  G.  B. 

Laws  of  receiving  state  have  no  control  over  consul's  expen- 
diture of  money  and  citizens  of  receiving  state  are  not  concerned 
with  abuses  relating  to  fees  charged;  see  Commonwealth  v.  Di 
Silvestro,  1906,  IT.  S. 

When  a  consul  administers  an  estate  he  is  not  an  ordinary 
administrator  but  acts  as  receiver  or  agent  and  his  duties  are 
prescribed  by  law ;  see  Sturgis  v.  Slacum,  1836,  TJ.  S. 

Case  in  which  court  declared  that  consul  has  no  right  to  re- 
ceive fees  when  acting  upon  instructions  from  his  government; 
see  De  Lema  v.  Haldimand,  1824,  G.  B. 

Court  admits  affidavits  taken  before  British  consul  in  Rus- 
sia because  magistrates  of  Russia  are  not  empowered  to  take 
affidavits;  see  (In  re)  Daly,  1841,  G.  B. 

List  of  the  arrival  of  ships  sent  home  by  consuls  are  mere 
representations  and  cannot  be  received  as  evidence;  see  Roberts 
V.  Eddington,  1801,  G.  B. 

The  consul's  action  when  caring  for  estates  looking  after 
the  interests  of  owners  in  prize  proceedings  is  of  the  nature  of 
surveillance  and  is  not  judicial;  see  Atty.  Gen.  Vol.  VIII,  p.  101, 
1856,  TJ.  S. 

Representative  character  of  consul  when  asking  for  the  de- 
livery of  prisoners  to  be  transported  to  the  sending  state  for  trial ; 
see  Atty.  Gen.  Vol.  VIII,  p.  76,  1856,  TJ.  S. 

Consuls  are  not  judicial  officers;  see  Atty.  Gen.  Vol.  VIII, 
p.  381,  1857,  TJ.  S. 

Court  declared  that  the  old  practice  allowing  the  swearing 
of  affidavits  before  notaries  were  still  in  force  in  a  case  where 
no  British  consul  was  within  150  miles ;  see  Cooke  v.  Wilby,  1884, 
G.  B. 

The  British  court  received  an  acknowledgment,  the  af- 
fidavit verifying  the  same  having  been  sworn  to  before  the  pro- 
visional British  consul  and  no  notary  or  other  official  present 
before  whom  it  could  have  been  sworn  being  within  many  hun- 
dred miles;  see  (In  re)  Darling,  1845,  G.  B. 

Court  declares  that  it  has  no  authority  to  compel  witnesses 

779 


NATURE  OF  CONSULAR  OFFICE 

to  testify  before  Spanish  consul;  see  Spanish  Consurs  Petition, 
1867,  U.'  S. 

"American  consul  has  no  authority  except  what  may  be  ex- 
pressly granted  by  a  law  of  congress,  and  acknowledged  by  the 
government  in  whose  jurisdiction  he  resides;"  see  Atty.  Gen. 
Vol.  XIX,  p.  197,  1888,  U.  S. 

(C.)  Definition 

^  "A  consul  is  an  officer  comissioned  by  his  government  for 
the  protection  of  its  interests  and  those  of  its  citizens  or  sub- 
jects;" see  Oscanyan  v.  Anns  Company,  1880,  TI.  S. 


780 


CITATIONS  OF  CONSULAR  CASES 


Case  Page 

ADOLPH,  THE,  (1835)    175 

ADOLPH,   THE,    (1851)     119 

ADUTT,  IN  RE    183 

AGINCOURT,    THE    62 

ANNE,   THE    45,193,434,499 

ARNOLD   V.   THE   UNITED   IN- 
SURANCE COMPANY   573 

ASPINWALL  V.  THE  QUEEN'S 

PROCTOR     241,247 

ATLANTIC,  THE    223  note 

BAIZ,  IN  RE    193 

BARBUIT'S  CASE     105,106,187,349 
419,  420,  426,  431,  469,  499 
BECHERDASS  AMBAIDASS, 

THE    61 

BELLO  CORRUNES,  THE   

119, 156,  327,  361 

BERNARD  v.  CREENE   65 

BISCHOFFSCHEIM     v.     BALT- 

ZER 7 

BORS  V.  PRESTON 195,  311,  330 

CATLETT    V.    PACIFIC   INSUR- 
ANCE COMPANY   231 

CHURCH   V.   HUBBART    

9,  231,  232,  350,  351 
CLARKE  V.  CRETICO  .  . .  349,  431,  499 

COFFIN  V.  WELD    306 

COHENS  V.  VIRGINIA    

77,  167, 169,  413 
COMMONWEALTH  v.  KOSLOFF 

194,  339,  348,  414,  499,  552 

COPPELL  V.  HALL    193,  330 

CORIOLANUS,    THE    182 

COURTNEY,    THE    129, 175,  296 

CRUTTENDEN  v.  BOURBELL   51,  138 

DAINESE  V.  HALE 29 

DAVENPORT,  IN  RE    309 

DAVIS   V.   PACKARD      75,77,78,113 
note,  149,  161,  169,  330,  421,499,  574 
DE    GIVE    T.    GRAND    RAPIDS 
FURNITURE  COMPANY    ....   330 

DURAND  V.   HALBACH    499 

EL  WINE   KREPLIN,   THE    .... 

29,  61,  363,  364 


Case  Page 

EUDORA,    THE    298 

EVANGELISTRA,    THE    62 

FALCON,    THE    573 

FATTOSINI,  MATTER  OF    .... 

236,  245,  309,  461 

FLYNN  V.  STOUGHTON 499 

FROMENT  V.  DUCLOS    313 

GITTINGS  V.  CRAWFORD 

77,  78,  80, 193 

GOLUBCHICK,   THE    

60,  62,  130,  288,  326 

GRAHAM  V.  STUCKEN 78 

HALL  V.   YOUNG    499 

HARRISON  V.  VOSE    332 

HAVANA,  THE    61,  312 

HEATHFIELD  v.  CHILTON  ...     42 

HERMAN  V.  HERMAN   333 

HERRES,  IN  RE   183 

HITZ,   EX  PARTE    50 

HOLLANDER  v.   BAIZ    193 

HUTCHINSON,   EX  PARTE    ...    138 
HUTCHINSON  v.  COOMBS    25,  90,  306 

INDIAN  CHIEF,  THE 573 

JONES  V.  LE  TOOMBE 331 

JORDAN  V.  WILLIAMS    334 

JOSEPHINE,  THE    573 

KAMMERHEVIE       v.       ROSEN- 

KRANTS     6 

KENNEY  V.  BLAKE    376 

LAMB  V.    BRIARD    26,89,306 

LANFEAR  v.  RITCHIE 241,  461 

LEON  XIII,  THE   61,  64 

LEVY  V.   BURLEY    8 

LOBRASCIANO 'S  ESTATE,  IN 

RE  309 

LOGIORATO'S,  IN  RE    236,  242 

LONDON  PACKET,  THE    119 

LORWAY   V.   LOUSADA    312 

MADONNA    D  'IDRA    175,  296 

MAGEE  V.  THE  MOSS    208 

MALI  V.  KEEPER  OF  THE  COM- 
MON  JAIL    447,450 

MANNHARDT  v.  SODERSTROM 

117,  217,  348,  413, 421, 499,  552 


781 


CASES  CITED 


Case  Page 

MAKIE,   THE    363 

MAESH-\LL  V.  CRITICO  ....  136,  349 

MARY,   THE    372 

MATHEWS  V.  OFFLEY    643 

MOORE  V.  MILLER   353 

MOSBY  V.  UNITED  STATES   .  . 

335,  615,  649 

NEW  CITY,  THE    436 

NEWMAN,  EX  PARTE   61 

NINA.    THE    10,  60 

NIMROD,    THE;    see    SMITH    v. 

TREAT    

NORBERG  V.  HILLGREU 363 

OCTAVIE,  THE   288 

ONE  HUNDRED  AND  NINETY- 

FOm    SHAWLS    61 

PATCH  V.  MARSHALL   71 

PATTERSON  v.  BARK  EUDORA  376 
RABASSE,  SUCCESSION  OF  .  . .  241 
ROBERTS  V.   EDDINGTON    ....    232 

SAGORY   V.    WISSMAN    113  note 

ST.  LUKE 'S  HOSPITAL  v.  BAR- 
CLAY          78 

SALOMONI,  THE    363 

SARTORI  V.  HAMILTON   499 

SMITH   V.    TREAT    208,372 

SNOW  V.   WOPE    459 

STATE  V.  DE  LA  FORET    ..499,552 

STEIN  V.   BOWMAN    645 

TARTAGLIO,  IN  RE    ...156,309,461 

TELEFSEN  v.  FEE    461 

THOMPSON'S   SUCCESSION    ..   246 

TINGLE    V.    TUCKER    26,306 

TRIQUET  V.   BATH    

52,106,136,349,431 

TROOP,   THE    214 

TWO    FRIENDS     59,290 

UNITED  STATES  v.  BADEAU  .   649 


Case  Page 

UNITED  STATES  v.  MITCHELL 

9,  231,  233 
UNITED  STATES  v.  MOSBY  . . . 

284,  394,  649 
UNITED   STATES   v.   MOTHER- 
WELL      284 

UNITED  STATES  v.  ORTEGA  .  . 

43,  77,  168,  179, 194 
UNITED   STATES   v.   RAVARA      76, 
11.5,  117,  166,  169,  170,  194, 
338,  413,  420,  472,  499 
UNITED     STATES     v.     TRUM- 
BULL        51 

VALARINO  V.  THOMPSON 

311,  330,  574 

VERGIL,  IN  RE    240 

YIVEASH  V.  BECKER 

17,  42,  339,  414,  499,  576 
VROW       ANNA      CATHARINA, 

THE   13,14,15 

WAITSHOAIR    V.    THE    CRAIG- 

END    285 

WALDRON  V.  COOMBE 232 

WEDDERBURN,      SUCCESSION 

OF     155 

WEIBERG  V.  THE  ST.  OLOFF  . 

60, 129, 326 

WELHAVEN,    THE     369,364 

WILCOX  V.  LUCO   330 

WILDENHUS  'S    CASE    302 

WILDENHUS,  IN  RE    125 

WILHELM     FREDERICK,     THE 

84,  129,  175 
WILLENDSON  v.  FOSOKET  .  . . 

60, 129,  446 
WILLIAM  HARRIS,  THE  ...372,577 
WILSON  V.  THE  MARY  ....  208,  459 
WYMAN,  IN  RE    309 


7S2 


INDEX 

(References  are  to  pages) 

ABSENT  NATIONALS  {see  REPRESENTATION  IN  COURT) 

see  Compendium,  723-726 
ACCOUNTS  {see  REGULATIONS) 

ACKNOWLEDGMENTS    {see   AFFIDAVITS;    CERTIFICATES;    DEEDS; 
POWER  OF  ATTORNEY) 

see  Compendium,  728-729 
ACTING  CONSUL 

files  claim  in  prize  j^roceedings  for  national,  151 
ADMINISTRATION  OF  ESTATES 

see  Compendium,  724-725 

arbitral  award  because  of  refusal  to  grant,  423 

consul  must  give  bond,  158,  461 

conflicting  decisions  of  courts,  129 

petition  to  be  given,  of  deceased  consul,  333 

right  of  Spanish  consul  in  Cuba,  639 

right  to  appoint  delegate  to  represent  heirs,  317 

procedure  wlien  under  different  jurisdictions,  357 

most  favored  nation  clause,  461 

"intervention,"  meaning  of,  237,  243 

right  to  receive  moneys,  361 

nature  of  consuls  action,  569 

consul  not  given,  165,  224 

administrator  making  personal  claim  no  longer  acts  as  administrator,  358 

powers  of  consuls,  241 

given,  because  public  administrator  refused,  247 

discussion  of  Spanish  regulations,  634-639 

consul  given  right  to,  by  treaty,  129,  148,  157,  244,  361,  587 

procedure  to  be  followed  to  secure  recognition  of  treaty  right,  587 
AFFIDAVITS 

see  Compendium,  729-730 

consular  certificate  annexed  to,  214 

under  bankrupt  law,  72 

that  citation  had  been  made,  valid  under  state  laws  when  taken  before  con- 
sular agent,  265,  280 

admissibility  of,  when  taken  before  "commercial  and  naval  agent,"  446 

definition  of,  266 

fee  for  certificate  of  attestation   of   affidavit  to  invoice  taken  before  mag- 
istrate, 592 

authority  of  foreign   functionaries  should  be   attested   by  notarial   certifi- 
cate, 73 

administered  in  German  interpreted  in  English,  150 

power  given  American  consuls  to  administer  oaths  limited  to  certain  cases, 
188 

783 


INDEX 

AFFIDAVITS— Continued 

sworn  before  magistrate  accepted  when  consul  not  allowed  to  take,  159 

before  magistrate  allowed  to  be  filed  by  British  court,  183 

consul  is  magistrate  authorized  to  take,  326 

British  consuls  to  administer  to  nationals  only,  158 

competency  of  consuls  to  take  under  Nebraskan  statutes,  83 

notarial  certificate  when  sworn  before  consul  unnecessary,  73,  255 

sworn  before  notary  public  when  British  consul  far  distant  may  be  filed,  120 

before  consul  accepted  when  notary  certifies  competence,  192 

sworn  before  provisional  consul  accepted  when  no  notary  near,  128 

consul  is  a  representative  and  competent  to  administer  oaths,  332 

may  be  sworn  before  British  consuls  in  Russia  because  magistrates  not  em- 
powered to  take,  128,  138 

consuls  authorized  by  British  statute  to  take,  138 

British  statutes  do  not  authorize  consuls  to  take,  120 

British  statutes  regulating  taking  of,  122 

swearing  of  abroad,  230 

before  vice-consuls,  73 
AMBASSADOR 

meaning  of  in  the  act  of  7  Anne,  53 
APPOINTMENTS   (see  also  COMMISSIONS;  EXEQUATUR) 

see  Compendium,  764-765 

power  of  congress  as  to,  517 

demand  of  damages  of  charg6  d'affaires  because  of  refusal  to  appoint  act- 
ing consul  at  request  of  consul,  355 

of  vice  consuls,  dangers  of,  if  extensive  immunities  granted,  432 

person  placed  in  charge  by  consulate  by  incumbent  without  appointment  has 
no  authority  to  act  or  perform  notarial  services,  620 

power  of  president  to  make,  509,  511,  514 

temporary,  made  by  minister,  380 

of  consuls,  right  to  make,  must  be  secured  by  treaty,  429 

of  vice  consuls,  regulations  concerning,  384 

of  vice  consuls,  p>ower  to  make  without  concurrence  of  senate,  389 

of  vice  consuls,  trading  consul  authorized  to  make,  426 

of  vice  consuls  and  consular  agents,  cannot  be  made  by  consul,  540 
ARBITRATOR 

see  Compendium,  722 

action  of  consul  as,  622 

consul  acts  as,  577,  621 

consul  took  jurisdiction  at  instance  of  both  parties,  375 

right  of  consul  to  act  as,  in  case  of  differences  of  a  civil  nature,  606 
ARCHIVES 

Rfp  Compendium,  757 

disposition  of,  3 

emplovoe  cannot  be  made  to  divulge  contents  of  documents  in,  215 

inviolability  of,  3 

consular  agents  must  keep  separated,  5 

subpoena  will  not  issue  in  case  of,  146 
ARREST 

of  deserters  (see  DESERTERS) 

immunity  of  consul  from,  107 

liability  of  consul  to,  759-760 

784 


INDEX 

ARREST — Continued 

consul  not  privileged  from,  465 
trading  consuls  not  privileged  from,  423-432 
ATTACHMENT 

consuls  not  privileged  from  foreign,  86 
ATTESTATION      (see    AFFIDAVITS;      AUTHENTICATION;      CERTIFI- 
CATES) 

of  foreign  deeds,  instruments  or  commissions,  consuls  not  competent,  401 

of  foreign  judgments,  how  made,  82,  104 

of  foreign  laws,  consuls  not  competent  to  give,  103 

of  signatures  of  foreign  officials,  consuls  not  competent  to  give,  98 

of  signature  of  foreign  magistrate  giving  copy  of  foreign  judgment  made  hj 

notary,  150 

of  application  for  patent  before  magistrate,  483 

of  proceedings  of  foreign  courts,  350 
AUTHENTICATIONS  (see  also  AFFIDAVITS) 
AUTHORITY  OF  CONSULS   (see  JURISDICTION) 
AUTHORITIES  CITED 

Barbeyrac,  54,  114,  187,  338,  376,  431 

Beawes,  349,  432 

Borel,  470,  472,  499,  573 

Bouchard,  470 

Brown,  349,  419,  470 

Bynkershoek,  113,  114,  187,  338,  876,  471,  499 

Calliere,  470 

Calvo,  48 

Chitty,  475,  476 

de  Clerq  et  de  Vailat,  44,  517,  527,  539,  553,  557,  564,  572,  573 

Creasy,  451 

de  Cussy,  48,  496,  499,  539,  573,  574 

Dalloz,  500 

Denisart,  188 

Flynn,  499 

Grotius,  187,  376,  429 

Halleck,  80,  451 

Heffter,  48 

Home,  573 

Jefferson,  389 

Kent,  80,  142,  172,  178,  192,  323,  331,  361,  480,  499,  552,  577 

Lawrence's  Wheaton,  552 

de  Martens,  19,  48,  113,  114,  338,  349,  500,  573 

Masse,  500 

Mensch,  574 

Miltitz,  570 

Molloy,  349,  429 

Moreuil,  496,  499,  506,  516,  539,  562,  571,  573 

Orltolan,  457 

Pardessus,  474,  496 

Phillimore,  48,  122,  450,  452,  573 

Pinheiro  Ferreira,  573 

Riquelme,  543,  570 

Rebeiro  dos  Santos,  571,  573 

785 


INDEX 

AUTHORITIES  CITED— Continued 
Santos,  see  Rebeiro 
St.  Real,  -470 
Sirey.  -157 
Steck,  472 
Twiss,  451 
Valin,  470,  471,  472 

Vattel,  19.  106,  107,  114,  338,  419,  424,  429,  430,  431,  470,  471,  499,  573 
Warden,  123,  613,  639 
Wharton,  45,  48 

Wheaton,  156,  172,  223,  238,  246,  323,  361,  452,  499 

Wicquefort,  54.  106,  107,  113,  114,  187,  378,  419,  424,  431,  432,  470,  499 
Wildman,  499,  573 
Woolsey,  156,  246,  361 
BOND 

need  not  be  attested,  467 

remedy  for  consul 's  misappropriation  of  wages  to  be  sought  from  sureties 

on  his  bond,  612 
acts  previous  to  filing  of,  responsibility  of  consul,  391 
right  to  salary  previous  to  filing,  391 
date  at  which  takes  effect,  392 
CAPTAIN  (sec  MASTER) 
CARS 

sealing  of,  619 
CERTIFICATES,  CONSULAR,  (see  also  AFFIDAVITS) 
see  Compendium,  730-732 
of   acknowledgment,   evidence   of   character   of   person  before   whom  taken 

unnecessary,  322 
value  of  consul's  letter  as  evidence  of  facts  asserted  therein,  165 
only  those  in  which  consul  discharges  specific  consular   duties  included  in 

treaty,  401 
of  copy  of  ship's  papers,  value  as  evidence,  397 

of  authentication  of  deeds,  instruments  and  commissions  not  evidence,  401 
British,  as  evidence  of  desertion,  235 

of  discharge  preeludos  seaman 's  claim  for  subsequent  wages,  304 
relating  to  discharge  of  seaman,  as  evidence,  89,  90 
value  of,  as  evidence,  7-9,  98,  103,  182,  231,  232 
not  admissible  as  evidence,  164 
made  evidence,  208 
of  acknowledgments,  as  evidence,  284 

admitted  as  evidence  of  facts  known  to  consul  in  his  official  capacity,  83 
of  acknowledgment  by  married  woman  of  a  fine  may  be  given,  being  a  no- 
tarial act,  51 
as  evidence  in  case  of  imprisonment  of  seamen   (see  also  JURISDICTION 

OVER  SEAMEN)    121 
lists  of  ships  arrivals  returned  by  consul  are  not  evidence,  320 
ap7>roving  proceedings  of   master  will  not  relieve  him  from  responsibility, 

459 
of  official  character  of  officers  certifying  to  copy  of  will  accepted,  440 
of  asHigriiiKiit  of  patent,  validity  of,  282 
of  afkriowlc'lgmfnt  of  power  of  attorney  admitted,  82 
of  proceedings  before  consul,  182,  189 

78G 


INDEX 

CERTIFICATES,   CONSULAR— Continued 

as  evidence  of  refusal  to  return  seamen,  283 

of  sale  of  goods  by  congul  acting  officially  not  evidence,  439 

of  discharge  of  seamen  will  not  preclude  inquiry  of  court  into  cause,  192 

given  ship,  when  consul  of  third  nation  refused  to  give  up  her  papers,  72 

as  evidence  of  deposit  of  ship's  papers,  231 

of  documents  to  be  used  in  issuing  letters  testimentary,  consul  not  competent 
to  give,  82 
CHINESE 

regulations  regarding  the  return  of,  624 
CIPHER 

right  to  use,  3 
CITATIONS 

consul  not  authorized  to  issue,  149 

Spanish  consul  instructed  to  look  after,  himself,  640 
COMMERCIAL  AGENT 

competency  to  take  acknowledgments,  283 

where  appointed,  516 

designation  of  deputy  of,  329 

meaning  of,  329,  516 

seal  of  deputy  of,  329 
COMMISSION 

to  whom  directed,  54 

form  of,  given,  424-425 

to  take  acknowledgment  of  married  woman,  191 

to  take  testimony  (see  DEPOSITIONS) 
COMMON  LAW 

insular  nature  and  narrowness  of,  548 

question  as  to  application  in  case  of  offenses  by  consuls,  118 
COMMUNICATIONS   (see  also  CORRESPONDENCE) 

see  Compendium,  757-758 

with  central  colonial  authorities,  543,  581 

with  judicial  authorities,  177 
CONGRESS 

powers  of,  517 
CONSTRUCTION   (see  STATUTES;  TREATIES) 

CONSUL    (see   also    COMMERCIAL    AGENT;    CONSUL    GENERAL;    VICE 
CONSUL;   CONSULAR  AGENTS;   DESPATCHED  CONSULS) 

"any,"  meaning  of  in  statutes,  284 

when  subject  to  arrest   (see  ARREST),  2 

appointed  as  assessor  by  court,  186 

derives  his  authority  from  both  governments,  327 

competent  in  commercial  transactions  only,  98 

congress,  powers  concerning  consuls,  517 

designation  of,  belongs  only  to  consules  missi,  1 

de  facto,  entitled  to  salary,  390,  479 

definition  of,  293,  328,  517 

payment  of  funeral  expenses  of,  478 

are  not  judges,  163,  439,  459,  577 

not  liable  for  moneys  paid  to  clerk  under  direction  of  state  department,  415 

meaning  of  term,  515 

nature  of  consul's  office  (see  NATURE  OF  CONSULAR  OFFICE) 

787 


INDEX 

CONSUL — Coniinued 

origin  of  consular  establishments,  474,  545,  613 

proceedings  against,  suspended,  awaiting  conununication  of  receiving  state 
\nth  sending  state,  2 

punishment  of,  520,  524,  611 

is  a  representative  of  his  government,  76,  84,  121,  136,  149,  164,  178,  183, 
185,  195,  293,  332 

right  to  recover  for  money  spent  at  request  of  department,  227 

must  seal  cars,  619 

acts  as  official  of  state  of  Union,  322,  620 

included  in  term  "subordinate  consular  officers"  592 

not  compelled  to  appear  and  give  testimony  (see  TESTIMONY),  2 
CONSUL  GENERAL 

appointment  of  deputies  of,  148 

appointment  of,  539 

case  where  citizen  of  receiving  state,  192 

not  a  diplomatic  officer,  596 

nature  of  functions  of,  539 

rights  and  duties  of,  539 
CONSULAR  AGENTS 

see  Compendium,  763-764 

advantages  of  employing,  528-529,  575 

appointment  of,  consuls,  have  not  right  of,  540 

false  views  of  certain  authors  regarding  immunities  of,  573 

business  office  of,  must  be  separate,  5 

need  not  be  citizens  or  naturalized,  601 

office  of,  does  not  change  citizenship,  574 

are  not  consuls,  599 

under  control  of  consul,  255 

right  to  correspond  directly  with  local  authority,  5 

dangers  of  extensive  use  of,  576 

amount  of  fees  which  consular  agents  may  retain,   (see  also  FEES),  600 

immunities  of,  1,  4 

dangers  of  extensive  immunities  in  the  case  of,  576 

inconveniences  of  employing,  121,  576 

service  on  juries,  571-576 

meaning  of  term,  515,  528 

acts  as  representative  of  consul,  179,  255 

receiving  state  may  refuse  to  receive  subjects  as,  106 

subserviency  to  wishes  of  masters,  121 

exempt  from  taxes  on  consulate,  4 

engaged  in  trade  are  subject  to  the  same  diabilitiea  as  other  merehantfl,  7,  19, 
20,  98,  154,  198,  213,  310 
CONSULAR  CERTIFICATE  (see  CERTIFICATES) 
CONSULAR  REGULATIONS    (see  REGULATIONS) 
CONSULAR  RESIDENCE  (see  RESIDENCE) 
CONSULAR  SEAL  (see  SEAL) 
CONSULAR  SERVICE 

who  flhoulfl  bear  the  expense  for  the  maintenance  of,  525 
CONSULATE 

office  of  consular  agent  must  be  separate  from  businesi,  5 

788 


INDEX 

CONSULES   ELECTI    (see  CONSULAR  AGENTS) 
CONSULES  MISSI   (see  DESPATCHED  CONSULS) 
CONVEYANCES  (see  DEEDS) 
CORRESPONDENCE   (see  also  COMMUNICATIONS) 

may  be  intrusted  to  captains,  4 

disinfection  of,  4 
COURTS   (see  also  FEDERAL  COURTS;  STATE  COURTS) 

competent  to  decide  whether  German  treaties  obliges  the  delivery  of  tho8« 
"accused"  of  desertion,  652 

will  take  jurisdiction  in  cases  communis  juris,  66 

competent  in  cases  concerning  consuls,   (see  JURISDICTION  OVER  CON- 
SULS) 

rather  than  department  of  state  competent  to  decide  meaning  of  "destitute," 
612 

investigation  not  precluded  by  consuls  certificate  of  discharge,  192 

action  of  in  reviewing  consul's  action  in  discharging  seamen,  89,  90,  107, 
192,  199,  223,  304,  609 

of  the  receiving  state  have  discretionary  jurisdiction  over  suits  between  for- 
eigners, 129,  189 

of  the  United  States  (see  FEDERAL  COURTS) 

takes  jurisdiction  and  declares  that  British  consul 's  action  was  right,  187 

will  not  take  jurisdiction  until  consul  has  been  notified,  61,  198 

procedure  to  be  followed  in  notifying  consul  before  taking  jurisdiction  in 
libel  for  wages,  etc.,  178 

will  take  jurisdiction  if  consul  does  not  object,  186 

of  the  United  States  have  jurisdiction  to  prevent  prepayment  of  wages  by 
foreign  ships,  304 

will  take  jurisdiction  in  spite  of  consul's  protest,  60,  84,  446 

jurisdiction  refused  on  protest  of  consul,  164 

praise  consul's  action  in  not  opposing  recourse  to  their  jurisdiction,  375 

refused  to  take  jurisdiction  over  seamen,  446 

refused  to  take  jurisdiction  of  case  decided  by  consul,  375 

jurisdiction  taken  at  request  of  consul,  154 

of  sending  state  better  able  to  review  consul's  action,  199 

no  power  to  compel  giving  of  testimony  before  Spanish  consul,  335 

CRIMES 

jurisdiction   of  consuls  over    (see  JURISDICTION  OF  CONSULS   OVER 

CRIMES) 
against  the  law  of  nations,  114 

CRIMINALS 

request  for  detention  of,  578 

detention  of,  is  an  official  and  ministerial  act,  580 

power  of  consul  to  call  upon  man-of-war  to  detain,  578 

return  of,  to  the  United  States  for  trial,  334,  557 

CROSS  EXAMINATION  OF  CONSUL   (see  TESTIMONY) 

CUBANS 

protection  of  by  American  consuls,  644 

DE  BENE  ESSE  (see  DEPOSITIONS) 

DEATH  OF  CONSUL 

carrying  on  of  consulate  in  event  of,  4,  479 

789 


INDEX 

DEEDS.  ACNOWLEDGMENTS  OF   (see  also  AFFIDAVITS) 

see  Compendium,  ~-9 

consul  authorized  to  take,  247 

consuls  competent  to  take,  328 

consuls  competent  to  take  at  consulate  only,  253 

act  to  cure  defective  conveyances,  353 

certificates  of,  prima  facie  evidence,  284 

certificates  of,  prima  facie  evidence  of  ot!icial  character  of  person  taking, 
284 

certificates  of,  under  consular  seal  are  evidence,  247 

must  be  before  foreign  magistrate,  150 

object  in  allowing  them  to  be  taken  before  consuls,  322 

may  be  taken  before  British  consuls  in  Russia,  128 
DEPOSIT  OF  SHIP'S  PAPERS  (see  SHIP'S  PAPERS) 
DEPOSITIONS 

see  Compendium,  732-733 

consuls  may  authenticate,  483 

Spanish  consul  directed  to  attend  to  citations,  640 

commissions  for  taking  evidence  abroad  granted  by  courts,  104 

consuls  qualified  to  take  Mithout  commission,  333 

must  be  taken  under  a  commission,  351 

may  be  certified  by  commissioners  authorized  to  take  them,  104 

court  has  no  authority  to  compel  witnesses  to  give  testimony  before  Spanish 
consul,  335 

de  bene  esse,  consuls  not  competent  to  take,  7 

de  bene  esse,  may  be  taken  before  consuls,  73 

de  bene  esse,  not  ordinary  "notarial  acts,"  7 

right  of  consul  to  receive  fees  for  taking,  593 

consul  qualified  to  take  for  use  in  Nebraska,  83 

consul  is  a  magistrate  authorized  to  take  depositions,  326 

commission  issued  to  vice  consul  acceptable  when  purporting  to  be  executed 
by  him,  354 

regulations  concerning  the  issuances  of  letters  rogatory,  645 

when    seal    of    commercial    agent    employed    by    deputy    deposition   properly 
authenticated,  328 

consul  qualified  to  take  for  use  in  Texas,  6 
DEPUTY  CONSUL  (see  also  PROCURATION) 

acknowledgments  before,  353 

meaning  of,  528 

vice-consul  not  deputy  but  acting  consul,  188 
DESERTERS 

Bee  Compendium,  735-736 

local  authoritifiH  have  right  to  examine  whether  those  accused  of  desertion 
are  deserters,  652 

authority  of  court  in  carrying  out  treaty  provisions  applying  to  arrest,  586 

what  constitutes,  187,  284,  410 

arrest  of  nifinber  of  crew  of  ship  under  construction  is  not  a  deserter,  410 

must  be  delivered  to  consul  and  not  to  such  person  as  he  directs,  409 

detention  of,  not  limited  to  stay  of  ship,  127 

detention  not  to  exceed  two  months,  127 

power  of  consul  to  grant  the  discharge  of  for  cruel  treatment,  207 

7'JO 


INDEX 

DESERTERS — Continued 

consul  has  no  authority  to  receive  money  and  effects  belonging  to  deserters, 
603 

consuls  have  no  authority  to  imprison,  181 

arrest  of,  procedure  to  be  followed,  125,  586 

will  not  be  surrendered  except  by  reason  of  treaty  stipulations,  399 

treaty  with  Prussia  regarding  deserters  applies  to  North  German  Union,  603 
DESERTION    (see  also  DESERTERS) 

value  of  consul's  certificate  as  evidence  of,  235 

when  seamen  failed  to  return  because  imprisoned  was  not  a  case  of  deser- 
tion, 187 

court  refuses  to  take  jurisdiction,  199 

procedure  to  be  followed  by  British  consul,  235 
DESPATCH  AGENT 

mentioned,  225 
DESPATCHED  CONSULS 

immunities  of,  576 

use  of  term,  viii 
DESTITUTE   SEAMEN    (see   also   RETURN    OF   DESTITUTE    SEAMEN; 
SEAMEN,  CARE  OF) 

act   obliging  masters  to  convey  to  U.  S.   does  not  include  those  accused  of 
crime,  557 

court   declared  seamen  destitute   and   entitled   to   wages  expended   in   their 
care  by  consul,  612 

meaning  of  word  "destitute"  is  for  the  courts  to  decide,  612 

only  ships  bound  directly  for  U.  S.  must  return  seamen,  485 

consul  not  authorized  by  act  of  1803  to  aid  seamen  from  a  vessel-of-war, 
484 
DIFFERENCES   (see  JURISDICTION) 
DIPLOMATIC  FUNCTIONS 

see  Compendium,  737 

in  absence  of  diplomatic  representative,  390 

in  the  absence  of  diplomatic  representatives  competence  of  consul  to  repre- 
sent the  interests  of  his  state  in  admiralty  proceedings,  119 

circimi stances  when  advantageous  for  consul  to  exercise,  543 

exercise  of,  293,  294 

action  in  securing  extradition   (see  EXTRADITION) 
DIRECT  TAXES 

exemption  from,  3 
DISCHARGE  OF  SEAMEN  (see  also  JURISDICTION  OVER  SEAMEN) 

advice  of  consul  to  master  only  evidence  and  not  a  judicial  and  conclusive 
finding,  107 

consul  justified  in  discharging  seamen  when  master  and  seaman  agree,  629 

certificate  of  consul  a  bar  to  seaman's  suit  for  wages,  304 

value  of  consul's  certificate  regarding,  83 

consul  not  entitled  to  commission  on  wages,  186 

commission  of  consul  on  payment  of  wages,  310 

conditions  necessary  to  entitle  consul's  discharge  to  credence,  189 

authority  of  consul  to  make,  371 

power  of  consuls  in  ease  of,  25 

power  given  to  consuls  to  discharge,  222 

consul's  certificate  does  not  preclude  investigation  by  court,  192 

court  of  receiving  state  refuses  to  entertain  suit  concerning,  199 

791 


INDEX 

DISCHARGE  OF  SEAMEN— Continued 
American  courts  will  protect  seamen,  84 
acts  of  congress  do  not  prevent  courts  from  examining  into  discharge  made 

by  consul,  89,  90 
power  of  consul  to  grant,  for  cruel  treatment,  207 
for  disobedience  cannot  be  made  by  consuls,  107 
certain  discretion  to  be  allowed  consul,  629 
consul  entitled  to  fees  for,  on  foreign  built  vessel  sailing  under  American 

flag,  173 
German  consul  to  decide  whether  American,  member  of  crew  is  entitled  to 

discharge,  84 
master  incompetent  to  make  without  the  intervention  of  consul,  548 
decision  of   consul  in  making  reviewable   by   competent  court  but  not   by 

Treasury  Department,  609 
consul's  action  can  better  be  reviewed  by  courts  of  sending  state,  199 
no  means  of  reviewing  consul's  action  provided,  223 
sick  sailor  left  without  his  consent  does  not  come  under  act  requiring  three 

months'  wages,  189 
acts  governing  do  not  apply  to  seaman  too  sick  to  go  on  board,  88 
application  of  the  statutes  as  amended  in  1884,  447 
requisites  for  the  validity  of,  24 

value  of  consul's  certificate  as  to  validity  of  discharge,  223 
validity  of  consul's  action  to  be  judged  by  facts  before  him  at  the  time,  373 
payment  of  extra  wages,  185,  187 
consul  receives  wages  of  imprisoned  seamen  and  pays  for  detention  out  of 

them,  190 
seaman  entitled  to  recover  more  wages  although  paid  off  by  consul,  199 
payment  of  three  months'  wages,  310 

by  consul  precludes  from  suing  for  wages  subsequent  thereto,  373 
consul  has  no  right  to  discharge  and  give  three  months'  wages  when  ship 

springs  a  leak,  495 
DISPUTES   (see  JURISDICTION  OVER  SEAMEN) 
DISTRICT,  CONSULAR 
how  determined,  571 

DISTRICT  COURTS 

jurisdiction  over  consuls  (see  FEDERAL  COURTS) 

DOCUMENTS 

consul  cannot  be  compelled  to  produce  official,  146 
of  consulate  given  in  testimony  must  be  stricken  out,  216 
must  be  shown  that  document  is  not  official  before  court  will  issue  subpoena 
duces  tecum,  147 

DOMICILE 

see  Compendium,  755 

consular,  remains  in  sending  state,  19,  285,  333 

having  deputies  deriving  their  authority  from  the  consul-general  would  af- 
fect him  with  British  residence,  148 

DUCES  TECUM 

a  8ubi>oena  duces  tecum  will  not  issue  to  compel  consul  to  produce  documenta 
of  consulate,  146 
DUTIES   OF   CONSULS    (see  FUNCTIONS) 

792 


INDEX 

EDICTS 

authentications  of   {see  FOREIGN  LAWS) 
EFFECTS 

consuls  have  no  authority  to  receive,  of  deserters,  603 
ELEVES  CONSULS 

advantages  of  having,  531 
ENEMEY'S  VESSEL  {see  LICENSE) 
ENLISTMENT  OF  RECRUITS 

action  of  Great  Britain  in  U.  S.,  550,  582,  583-585 

sending  state  has  no  right  to  make,  when  not  authorized  by  receiving  state, 
550 
ESCUTCHEON 

right  to  place  over  door,  3 
ESTABLISHMENT 

see  Compendium,  773-774 

receiving  state  may  refuse  to  receive  subjects  as  consuls,  106 

right  to  appoint  consuls  must  be  secured  by  treaty,  429 
ESTATES   {see  ADMINISTRATION  OF  ESTATES) 

action  of  consuls,  568-571 

care  of,  fees  for,  are  official,  395 

letter  of  credit  not  assets,  555 

extent  and  nature  of  consul's  action  in  caring  for,  538 

nature  of  consul's  action,  569 

reasons  for  allowing  consul  to  care  for,  474 
EVIDENCE  {see  TESTIMONY) 

value  of  consular  certificate  as   {see  CONSULAR  CERTIFICATES) 
EXEMPTION  FROM  TAXATION  (see  TAXES) 
EXEMPTIONS    {see  IMMUNITIES) 
EXEQUATUR   {see  also  ESTABLISHMENT) 

action  of  authority  of  district  after  presentation  of,  1 

when  exequatur  could  not  be  asked  commercial  agents  appointed,  516 

presentation  of  commission  necessary  to  secure,  1 

does  not  entitle  to  immunities  after  dismissal  by  sending  state,  281 

form  of  exequatur  granted  by  English  Regent  given,  425 

necessary  to  entitle  consul  to  file  suit  in  an  official  capacity,  6 

consul  appoints  successor,  asks  charge  d'affaires,  to  request  exequatur,  355 

grant  not  retroactive,  6 

consul  pardoned  on  condition  that  he  surrender  his  exequatur,  77,  418 

right  to  withdravi^,  480 

consul's  office  may  end  before  withdrawal  of,  185 

withdrawal  of,  receiving  state  should  previously  inform  sending  state,  1 

privileges  must  be  awarded  as  long  as  not  withdrawn,  418 
EXPENSES 

for  lights  for  national  celebration,  properly  allowed  by  department  of  state, 
396 
EXTERRITORIALITY 

origin  and  basis  of,  546 

depends  upon  treaty,  122 
EXTERRITORIAL  JURISDICTION 

origin  and  basis  of,  122,  123,  546 

depends  on  treaty,  122 

793 


INDEX 

EXTRADITION 

see  Compendium,  736 

consuls  should  follow  instructions  to  secure  commitment,  97 

powers  of  consul  in  securing  commitment  for,  70,  214 

Swiss  consul  asks  for  commitment,  321 

complaint  verified  by  consul  sufficient,  155 

complaint  made  by  consul  under  oath  sufficient,  292,  423 

what  necessary  to  be  competent  to  swear  complaint,  318 

prisoner  retained  for,  delivered  over  to  consul,  213 

seaman  having  committed  a  crime,  delivered  to  consul,  556 

proceeding  may  be  commenced  by  consuls,  6,  183 

requisitions  for  surrender,  93 

of  consul  from  one  state  of  Union  to  another,  197 
FALSE  IMPRISONMENT 

official  act  of  consul  in  securing  commitment  does  not  constitute,  91 
FEDERAL  COURTS 

see  Compendium,  762 

jurisdiction   over  consuls  not   diminished   by  act  repealing  previous  express 
exclusion  of  the  state  courts,  164 

discussion  of  jurisdiction  of,  in  suits  against  consuls,   75-81,  194,  256,  257, 
413-415,  165-172 

cannot  refuse  jurisdiction  where  libelant  is  American,  154 

consul  may  claim  right  to  jurisdiction  of,  at  any  period  of  judicial  pro- 
ceedings, 256 

jurisdiction  of  circuit  court  over  certain  cases,  75-81,  118,  323,  414 

jurisdiction  of  circuit   court  not  taken  away  when  consul  is  a  party,   179- 
182,  414 

circuit  courts  not  given  jurisdiction  over  consuls,  312 

whether  federal  courts  have  jurisdiction  in  suits  concerning  consuls  citizens 
of  U.  S.  not  decided,  574 

have  jurisdiction  of  suits  in  which  consuls  are  necessary  co-defendants,  422 

jurisdiction  of,  extends  to  suits  in  which  consul  or  vice-consul  is  a  necessary 

co-defendant,  164 

quaere  as  to  application  of  common  law  in  case  of  offenses  by  consul,  118 

effects  of  the  word  "  all "  contained  in  the  constitution,  342,  345 

reasonB  why,  should  have  exclusive  jurisdiction  over  consuls  in  all  criminal 
cases,  but  not  necessary  for  civil  suits,  195 

impracticable  to  make  nature  of  consul's  act  criterion  for  taking  jurisdic- 
tion, 348 

consul  not  entitled  to  be  exempted  from   detention  by  state  courts  for  ex- 
tradition to  another  state  when  he  had  ceased  to  be  consul,  197 

jurisdiction  of  discussed,  414 

district  courts  given  jurisdiction  exclusively  of  the  state  courts  for  certain 
offenses  committed  by  consuls,  117,   133,  414 

district  courts  have  original  jurisdiction  over  suits  against  consuls,  172,  414 

jurisdiction    of   district   courts   exclusive   of   state  but   not  of   other  U.   S. 
courts,  258 

reasons  why,  have  jurisdiction  to  the  exclusion  of  state  courts,  325 

have  exclusive  jurisdiction  over  consuls,  119,  133,  349 

jurisdiction  of  does  not  extend  to  suits  against  a  member  of  a  firm  of  which 
consul  is  also  member,  when  the  firm  is  not  liable,  74 

consul  when  garnishee,  has  not  a  right  to,  216 

79-1: 


INDEX 

FEDERAL  COURTS — Continued 

consuls  and  ministers  put  on  same  footing  as  regards  jurisdiction  of,  136 

324 
jurisdiction  not  exclusive  of  state  courts,  139,  318 
jurisdiction  of  over  consuls  not  exclusive,  318 
object  of  placing  jurisdiction  of  consuls  under,   258 
jurisdiction  extends  to  offenses,  118 

jurisdiction  over  consuls  would  not  exclude  proceedings  out  of  court,  or  po- 
lice-power, 196 
jurisdiction  of,  privilege  of  sending  state,  136 
jurisdiction  of,  over  consuls  is  privilege  of  U.  S.  government,  421 
reasons  why,  should  have  jurisdiction  over  consuls,  348 
acts  of  congress  give,   jurisdiction   over   all  suits,   which   includes   an   action 

of  debt  upon  recognizance  of  bail,  136 
state  courts  do  not  have  jurisdiction  in  cases  concerning  consuls,  135,  324 
supreme  court  has  appelate  jurisdiction  over  consuls,  108,  414,  417 
supreme  court  has  exclusive  jurisdiction,  417 
supreme  court  has  original  but  not  exclusive  jurisdiction,  417 
consuls  may  commence  suits  in  the  supreme  court,  258 
supreme  court,  jurisdiction  of  cases  affecting  consuls  not  exclusive,  77,  464 
consuls  may  bring  question  of  jurisdiction  to  supreme  court,  473 
cannot  compel  the  giving  of  testimony  before  foreign  consuls,  335 
until    1875,   had   exclusive   jurisdiction,    whether    at   common   law   or   under 

U.  S.  statutes,  194 
right  of  consul  to  waive  jurisdiction  of,  161,  183,  185 

consuls  may  not  waive  right  to  jurisdiction  of,  75,  136,  149,  283,  421,  447 

quaere  whether  consul  waived  right  of  jurisdiction  by,  133-134 

jurisdiction  of,  not  waived  by  pleading  in  state  courts,  256,  283 

consul  waives  right  to  jurisdiction  of  federal  courts  by  failure  to  plead  his 
character,  161 

jurisdiction  of,  Wheaton's  note,  412-415 
FEES   (see  also  REGULATIONS) 

see  Compendium,  769-770 

application  of  act  of  1855  to,  526 

not  entitled  to  receive,  for  giving  certain  certificates,  139 

what  fees  may  be  retained  by  consular  agent  and  his  principal  officer,  600 

court  gives  damages  for  fees  collected,  252 

consul  may  receive,  for  acting  as  commissioner  to  take  depositions,  593 

for  discharge  of  seamen  on  foreign  built  vessel,  173 

for  the  care  of  estates  are  official  and  may  not  be  retained,  395 

for  care  of  estates  may  be  retained,  410 

consul  has  no  right  to  recover  from  U.  S.  fees  illegally  collected,  337 

for  invoices,  173,  592,  618 

official  fees,  284,  337,  379,  410,  618 

determination  of  what  fees  are  official,  379 

Department  of  State  better  qualified  to   determine   what   are  official   than 
Treasury,   379 

redress  for  abuses  relating  to,  in  the  case  of  a  foreign  consul  not  within  the 
jurisdiction  of  the  receiving  state,  112 

for  receiving  and  delivering  ship's  papers,  596 

recovery  of,  paid  into  Treasury,  410,  415 

795 


INDEX 

FILIPINOS 

protection  of,  642 
FLAG 

right  to  display,  3 
FOREIGN  CONSULS  (see  also  CONSULS) 

advantages  to  U.  S.  to  have  its  citizens  appointed,  575 

mav  be  sued  only  in  federal  courts  (see  FEDERAL  COURTS) 

may  not  hold  office  under  U.  S.  government,  574 

question  whether  U.   S.   citizens  included  in  proviiions  of  conBtitution  re- 
ferring to  consuls,  574 
FOREIGN  JUDGMENTS 

authentication  of   (see  also  AUTHENTICATION),  104 
FOREIGN  MAGISTRATES 

authentication  of  the  signatures  of  (see  OFFICIAL  CHARACTER) 
FOREIGN  LAWS  (see  also  AUTHENTICATION) 

consuls  have  not  power  to  authenticate,  103 

are  facts  which  must  be  proven,  102 

must  be  verified  by  an  oath,  103 
FUNCTIONS 

see  Compendium,  721 

division  of,  527 

in  relation  to  the  return  of   Chinese,  624 

enumeration  of,  185,  425,  474,  517 

not  limited  to  those  enumerated  in  statutes,  316,  517 

no  invariable  test  to  decide  which  are  official,  613 

origin  and  development  of,  474,  544 

must  not  be  such  as  are  contrary  to  laws  of  receiving  state,  550,  570,  582, 
640 

source  of,   185,  518 

discharged  by  consuls  of  a  third  state,  626 
GARNISHEE 

consul  when,  has  not  a  right  to  invoke  the  jurisdiction  of  the  federal  courts, 
216 
IMMUNITIES     (see    CONSULS;    DESPATCHED    CONSULS;    CONSULAB 
AGENTS) 

see  Compendium,  750 

exemption  from  arrest  (see  ARREST) 

of  consuls  charge  d'affaires  during  absence  of  diplomatic  representative,  45, 
544 

why  should  be  more  extensive  in  case  of  despatched  consuls,  576 

discussion  of  the  extent  of,  500 

consuls  entitled  to  certain  privileges,  432 

consul  may  be  dctainted  for  extradition  as  soon  as  his  consular  ofifice  hai 
ceased,   197 

consuls  and  minister  put  on  the  same  footing  as  to  jurisdiction  of  federal 
courts,   136 

consul  not  privileged  from  foreign  attachment,  87 

from  imprisonment   (see  IMPRISONMENT  OF  CONSULS) 

incompleteness  of  provisions  and  uncertainty  of  doctrine  in  Great  Britain 
and   U.   S.,   572 

regulation  of  the  Institute  of  International  Law  regarding,   1-5 

from  jurisdiction  not  personal  privilege  of  consul,  53,  136 

796 


INDEX 

IMMUNITIES— Con<inwed 

from  military  service,  574 

and  privileges  are  of  the  same  nature  as  those  accorded  a  minister,  42i 

no  well  established  rule,  572 

security  for  costs,  consuls  need  not  give,  112 

as  regards  giving  testimony  (see  TESTIMONY) 
IMPOSTS  OF  WAR 

exemption  from,  3 
IMPRISONMENT  OF  CONSULS 

immunity  from,  privilege  of  sending  state,  281 

immunity  would  cease  with  dismissal  by  sending  state,  281 

inconvenience  of,  avoided  when  may  appoint  delegates,  426 

case  in  Spain,  347 
IMPRISONMENT  OF  DESERTERS    (see  DESERTERS) 
IMPRISONMENT  OF  SEAMEN  (see  JUJRISDICTION  OVER  SIAMEN) 
INCOME 

exempt  from  taxation,  3 
INDIVIDUAL,  PROTECTION  OF 

see  Compendium,  756-757 

against  illegal  acts  of  consul,  621 
INSTITUTE  OF  INTERNATIONAL  LAW 

regulation  adopted  regarding  consular  immunities,  1 

wish  that  governments  take  care  in  selecting  consuls,  5 

INTERNATIONAL  LAW 

points  of,  definitely  settled  withdrawn  fronj  municipal  authority,  575 

INTERPRETATION  OF  STATUTES  (see  STATUTES) 

INTERPRETERS 

are  always  sworn,  104 

INTERVENE 

right  of  consul  to,  in  the  admiaistration  of  estates  (see  ADMINISTRATION 

OF  ESTATES) 
meaning  of,  237,  243,  246 

right  of  consul  to,  in  prize  proceedings  (see  PRIZE  PROCEEDINGS) 
INVOICES  (see  FEES) 

JUDGMENTS   (see  FOREIGN  JUDGMENTS) 
JUDICIAL  PROCEEDINGS 

consul  has  no  authority  to  authenticate,  98 
JURAT 

to  certificate,  191 

does  not  require  evidence  of  official  character  of  person  before  whem  it  was 
sworn,  322 

JURIES.  SERVICE  ON 

of  consular  agents,  571-576 
JURISDICTION 

what  courts  have  in  cases  concerning  consuls    (see  FEDERAL  COURTS; 

STATE  COURTS) 
of    courts    of    receiving    state    over     consul     (see     FEDERAL     COURTS; 

COURTS;    OFFICIAL  ACTS) 
of  consuls  (see  JURISDICTION,  CONSULAR) 
over  crimes  committed  on  board  (see  JURISDICTION  OVER  CRIMES) 

797 


INDEX 

JURISDICTION— Continued 

where  8{>ei'ial  power  delegated  to  consul,  law  raises  no  presumption  in  sup- 
port of  his  action,  25 
effect  of  consul's  protest  {see  PROTEST) 
when  U.  S.  courts  will  take,  in  case  of  seamen's  wages  (see  JURISDICTION 

OVER  SEAMEN) 
in  case  involving  application  of  U.  S.  statutes,  304 
jxranted  by  reason  of  treaty  stipulation,  28,  122,  475 
JURISDICTION,  CONSULAR  {see  also  JURISDICTION) 
see  Compendium,  739-748 
consular  courts  {see  NAVAL  COURTS) 
discussion  of,  473-477 
French  consuls  in   1792   did  not  have,   over   all  difference  between  French 

citizens,  86 
French  consul  had  jurisdiction  by  treaty  over  suit  between  two  Frenchmen, 

173 
limits  of,  577 
consul  cannot  retain  papers  of  ship  suspected  of  engaging  in  slave  trade, 

590 
in  prize  cases  (see  PRIZES) 
depends  upon  rule  of  reciprocity,  29 

court  reviews  consul's  action  and  declares  seamen  destitute,  612 
over  seamen    {see  JURISDICTION  OVER  SEAMEN) 
marshals  not  required  by  law  to  execute  sentence  of  French  consul,  464 
Spanish  consuls  competent  as  courts  of  first  instance,  639,  640 
Lord  Talbot  speaks  of  consuls  as  ha^^ng,  54 

none  exists  except  by  virtue  of  treaty  stipulations,  and  the  laws  of  the  send- 
ing state,  28,  123,  475 
has  no  right  to  exercise,  by  withholding  ship's  papers,  589 
JURISDICTION  OF  CONSUL  OVER  CRIMES  AND  OFFENSES  (see 
also  CRIMINALS) 
see  Compendium,  748 

aid  of  local  authorities  in  securing  commitment,  370 
seamen  having  committed  a  crime  delivered  to  consul,  557 
prisoner  delivered  over  to  consul,  213 

local  authority  should  assist  consul  to  send  him  home  for  trial  in  case  of  of- 
fenses committed  on  the  high  seas,  558-578 
in  case  of  offenses  committed  on  the  high  seas,  164,  305 
committed  on  the  high  seas,  discussion  of,  558-568 
are  not  judges,  456-577 
follows  from  authority  of  master,  580 

master  cannot  be  compelled  to  convey  a  criminal  to  the  U.  S.,  577 
action  is  ministerial  not  judicial,  580 
cannot  punish  for  offenses,  459 
consul  paid  for  detention  of  seamen  imprisoned  for  an  offense  out  of  wages, 

190 
consuls  do  not  have  jurisdiction  over  offenses,  606 
powers  that  of  police,  577 

persons  unjustly  detained  on  board  may  be  released  by  consul,  561 
local  authorities  have  no  authority  over  crimes  committed  at  sea,  557,  560 
sending  home  for  trial,  370 
limited  to  shipboard,  577 

708 


INDEX 

JURISDICTION   OVER  CONSULS   (see  also  AKEEST;  COUETS;  DOCU- 
MENTS;  FEDERAL  COURTS;   STATE  COURTS;   TESTIMONY) 

see  Compendium,  756,  758-763,  771 

receiving  state  and  its  citizens  not  interested  in  abuses  regarding  fees  of 
foreign  consul  and  his  manner  of  conducting  the  office,  112 

consul  subject  to  courts  of  receiving  state  for  civil  and  criminal  causes,  470, 
480 

subject  to  commitment  by  local  magistrates  awaiting  requisition  for  extra- 
dition, 196 

court  refused  to  compel   French  consul  to   deliver  registry  at   instance   of 
British   consul,  72 

consuls  do  not  have  immunity  from,  in  criminal  cases,  115 

reason  why  federal  courts  should  have  in  criminal  cases,  195 

as  soon  as  consul  ceases  to  be  consul  may  be  detained  for  state  rendition  to 
another  state,   197 

when   garnishee,  216 

immunity  from,  not  secured  in  treaties,  114 
JURISDICTION    OVER    SEAMEN     (see    also    CONSENT    OF    CONSUL; 
COURTS;    RETURN   OF   DESTITUTE   SEAMEN;    SEAMEN) 

see  Compendium,  739-748 

U.  S.  Courts  must  exercise,  when  libelant  American,  154,  296 

foreign  consul  given,  even  over  an  American,  259 

American  seamen  enrolled  in  violation  of  U.  S.  law  not  under  jurisdiction 
of  German  consul,  284 

German    consul    has    by    treaty    jurisdiction    over    American    members    of 
crew,  84 

all  persons  shipped  on  American  vessels  entitled  to  relief,  640 

of  consul  limited  to  arbitrament  of  differences  of  a  civil  nature  but  not  of 
offenses,  606 

Italian  consul  has  by  treaty  in  case  of  wages  but  not  in  case  of  assault,  323 

officer   who   arrests   seamen   although   notified   that   consul   had   jurisdiction 
guilty  of  assault,  366 

act  authorizing  authorities  to  help  consuls  to  carry  into  effect  their  awards, 
arbitrations,  or  decrees,  606 

consent  of  consul  before  taking  jurisdiction,  required,  6 

consent  of  consul  necessary  to  take  jurisdiction,  121 

consent  of  consul  could  not  confer  jurisdiction,  174,  288 

whether  consul's  or  ambassador's  consent  necessary  to  allow  courts  to  take 
jurisdiction,  457 

when  given  by  treaty  to  consul  he  alone  has  authority  to  act  in  first  in- 
stance, 363 

consul  does  not  have,  459 

consul's  certificate  will  not  relieve  master  of  responsibility,  459 

courts  will  pay  great  attention  to  wishes  of  consuls  as  regards  taking  juris- 
diction, 61 

consul  cannot  delegate,  334 

consul  has  no  authority  to  have  deserters  delivered  to  captain  of  vessel; 
delivery  must  be  made  to  himself  or  authorized  deputy,  409 

detention  of  deserters,  125 

consul  has  no  authority  to  receive  money  and  effects  of  deserters,  603 

consul  has  no  authority  to  imprison  deserters,  181 

799 


INDEX 

JURISDICTION  OVER  SEAMEN— Continued 

court  re\news  action  of  consul  and  declares  seaman  destitute  and  entitled 
to  wages  expended  by  consul,  612 

consul  settling  differences  referred  to  him  by  master  and  member  of  crew 
acts  as  arbitrator,  622 

power  of  consul  to  discharge  deserter  for  cruel  treatment,  207 

consul 's  discharge  final  and  cannot  be  reviewed,  223 

validity  of  consular  discharge  to  be  judged  by  facts  before  him  at  the 
time,  373 

powers  given  consuls  in  discharging  seamen,  222,  223 

Treasury  Department  not  competent  to  review  validity  of  consul's  action  in 
discharging  a  seaman,  609 

courts  have  discretionary  power  to  exercise,  60,  129,  174,  186,  219,  285,  287, 
292 

able  discussion  of,  151,  174 

court  will  take  in  spite  of  treaty  where  no  consul  in  district,  10 

of  federal  courts,  376 

not  necessary  to  decide  whether  consul  has  right  to  exercise  jurisdiction  in 
dispute  between  master  and  seaman  on  American  owned  foreig^n  built 
vessel  as  he  acts  as  arbitrator,  622 

given  to  German  consuls  by  treaty,  152 

treaty  gives  German  consuls,  285 

when  courts  will  leave  to  tribunals  of  home  country,  458 

power  of  consul  to  imprison  changed  by  act  of  1840,  208 

practice  of  securing  aid  of  local  authorities  to  imprison  seamen,  370 

case  where  seamen  imprisoned,  459 

Chitty  says  consuls  may  be  pursued  for  false  imprisonment  if  not  careful 
in  imprisoning  seamen,  475 

imprisonment  by  order  of  consul,  presumed  to  be  necessary,  98 

imprisonment  by  order  of  consul  does  not  relieve  master  of  responsibility, 
121,   164 

consul  responsible  for  abuse  of  power  in  securing  the  imprisonment  of  sea- 
men, 209 

discussion  of  consular,  and  its  limits,  452-457 

limits  of  consular,  451 

local  authorities  should  aid  consul  to  maintain  order,  561 

consent  of  consul  to  discharge  of  seaman  does  not  relieve  master  from  re- 
sponsibility, 192 

responsibility  of  master  when  securing  the  intervention  of  the  consul,  210 

master  not  relieved  from  responsibility  by  consulting  consul,  459 

cage  of  the  Nevvton,  452 

consul  must  ho  notified  before  British  courts  will  take,  178,  288 

object  of  consular,  10 

courts  will  not  usually  take  when  consul  objects,  164,  252 

consul  cannot  punish  for  offenses  committed  by  seamen,  459 

of  consuls  does  not  extend  to  crimes  committed  within  the  port,  457 

consul  has  no  right  to  detain  seamen  in  prison,  212 

consul  has  not  power  to  inquire  into  quarrels  between  crew,  207 

court  refused  to  take  jurisdiction  over,  369 

court  refused  to  take,  458 

court  refuses  to  take  where  recourse  had  been  had  to  consul  by  both  parties, 
374 

800 


INDEX 

JURISDICTION  OVER  SEAMEN— Continued 
court  takes  at  request  of  consul,  334 
case  of  the  Sally,  452 
when  seamen  are  of  third  states  limited  to  matters  related  to  their  service, 

376 
court  takes  in  a  case  of  tort,  296 
has  right  to  inquire  into  cruel  treatment  of  crew  and  his  finding  might  be 

conclusive,   107 
local  authorities  have,  unless  taken  away  by  treaty,  605 
treaty  provisions  relating  to,  452,  455 

right  of  wages  may  be  contested  despite  the  consul's  action,  107 
court  takes  in  a  case  of  libel  for  wages,  436 
consul  must  have  right  to  decide  who  is  member  of  crew,  597 
why  allowed  to  consuls,  451 
case  of  the  Yally,  456 
LAWS  OF  FOREIGN  STATES  {see  FOKEIGN  LAWS) 
LEGALIZATIONS   {see  AUTHENTICATIONS) 
LETTERS  OF  CREDIT   {see  ESTATES) 
LETTERS  ROGATORY   {see  DEPOSITIONS) 
LICENSE 

consul  cannot  grant,  giving  enemy's  ship  exemption  from  seizure,  70,   190, 
320 
MAGISTRATE 

by  Brazilian  law  consul  sells  damaged  goods,  439 
consul  is  a,  326 
meaning  of,  327 
MARRIAGE 

see  compendium,  722 

consul  at  Frankfort  in  the  habit  of  solemnizing,  250 
made  in  presence  of  consul,  214,  502 
consuls  are  not  competent  to  solem.nize,  502,  542 
MARRIED  WOMAN 

acknowledgments  of,  51,  82,  150,  191,  283,  354 
MASTER 

should  take  the  advice  of  the  consul,  but  consul  only  gives  advice  which  does 

not  relieve  master  of  responsibility,  410 
authority  to  maintain  order,  579-580 

consular  discharge  a  bar  to  suit  for  subsequent  wages,  373 
cannot  be  compelled  to  convey  criminals  to  U.  S.,  557 
penalty  for  refusal  to  return  destitute  seamen,  283 
his  responsibility   for  imprisoning  seamen  not  relieved  by  co-operation  of 

consul,  121,  164,  255,  296,  459 
responsibility  for  payment  of  wages  in  case  of  discharge  {see  DISCHAKGE 

OF  SEAMEN) 
suits  against  for  not  depositing  ship's  papers  {see  SHIP'S  PAPEES) 
MERCHANTS,  CONSULS  WHEN  {see  CONSULAR  AGENTS) 
MESSENGERS 

despatches  may  be  sent  by,  3 
MILITARY  SERVICE 

liability  of  consular  agents  to,  571-576 
MILITIA  {see  MILITAEY  SERVICE) 

801 


INDEX 

MINISTER 

consul  not  a  public  (see  NATUEE  OF  THE  CONSULAK  OFFICE) 
MINORS.  CARE  OF 

see   Compendium,   723 

consul  cannot  appear  and  waive  citation  of  minors  in  surrogate's  court,  309 

consul  has  right  to  receive  distributive  shares  of  minors  of  an  estate  of  a 
national,  361 

consul  appointed  guardian  of  minor  nationals,  263 

duty  of  consuls  to  look  after  rights  of  minors  when  heirs,  569 

consul's  duty  to  return  minor  stowaway  on  ship  to  parents,  252 
MOST  FAVORED  NATION  CLAUSE 

see  Compendium,  751 

consul  of  Chili  benefits  from,  418 

application  claimed  by  Danish  consul,  308 

whether  stipulations  of  treaty  with  France  apply  to  other  nations  by  appli- 
cation of,  not  settled,  553 

gives  Italy  privileges  enjoyed  by  Argentine  Kepublic,  157,  245 

Russian    consul    secures   right    to    administration    of    estate    by    application 
of,  460 

does    not    grant    Sweden    all    advantages    of    the    special    convention    with 
France,  443 

Swedish  consul  claims  application  of,  441,  443 
NATURE   OF   THE   CONSULAR   OFFICE    (see  also  OEIGIN  OF  CON- 
SULS) 

see  Compendium,  775-780 

acts  as  agent  for  parties  in  selling  damaged  goods,  439 

consul  is  agent  of  the  sending  state,  121,  147,  160,  285 

consul  commercial  representative,  198 

are  not  merely  commercial  agents,  499 

consul  also  functionary  of  receiving  state  (see  Compendium,  778-780) 

consuls  general  agents  for  nationals,  165 

not  a  judicial  officer,  163,  439,  459,  577 

not  like  legatus  of  old,  429 

consuls  originally  municipal  officers,  613 

consul  is  an  "officer  in  the  service  of  his  country,"  112 

consuls  are  public  agents,  143,  293j  347,  417 

not  a  public  authority  of  the  receiving  state  but  is  a  dignitary,  410 

not  a  public  minister,  107,  337,  428,  463,  470 

consuls  do  nut  represent  the  person  of  their  sovereign,  114 

consul  not  representative,  337,  463 

consul  representative  of  the  sending  state,  76,  84,  121,  136,  149,  164,  178, 
183,  185,  195,  293,  332 

when  making  sale  of  ship  same  inhibitions  apply  as  in  case  of  trustee,  319 
NATIONAL 

meaning  of,  642 
NAVAL  COURT 

(iisiMiHsion  of  tlie  competence  of,  71 
NAVAL  OFFICERS 

affirlavits  niny  be  sworn  before  "commercial  and  naval  agent,"  446 
NEUTRALITY,  VIOLATIONS  OF 

consul  may  not  protect  belligerent  property  by  the  use  of  his  neutral  name, 
120 

802 


INDEX 

NEUTRALITY,  VIOLATIONS  OF— Continued 
consul  not  competent  to  make  claim  for,  17 
consul's  protest  against,  72,  436 
NOTARIAL  ACTS    (see  also  AFFIDAVITS;   AUTHENTICATION) 
see  Compendium,  726-728 
certificates  of  acknowledgment  are,  51 
the  taking  of  affidavits  included  among,  128 
cannot  be  performed  by  person  not  regularly  appointed,  621 
value  of  such  acts  depends  on  character  of  person  performing  them,  620 
certain  of  consuls  services  are,  526 
consul  not  obliged  to  perform,  598 
certifying    the    official    character    of    a    foreign   notary    is    not    a    notarial 

act,  598 
unofficial  services,  379 
NOTARY  PUBLIC  (see  also  NOTARIAL  ACTS;  OFFICIAL  CHARACTER) 
affidavit  sworn  before,  valid  when  no  consul  within  reach,  120 
affidavits  sworn  before  consul  allowed  when  no  notary  or  other  official  per- 
son at  hand,  128 
no  certificate  of,  required  for  affidavits  taken  before  consul,  73 
quaere  does  the  British  statute  authorizing  consuls  to  perform  notarial  acta 

permit  them  to  take  affidavits,  128 
certificate  of,  that  consul  competent  to  administer  oaths,  191 
certificate  of,  not  necessary  when  affidavit  sworn  before  consul,  255 
authority  of  consul  to  certify  instruments  authenticated  before,  98,  184 
should  attest  authority  of  foreign  functionary  taking  affidavit,  73 
British  statute  requires  the  presence  of,   when  affidavits  are  sworn   before 

foreign  magistrates,  122 
not  being  authorized  to  administer  oaths  not  competent  to  take  patent  ap- 
plication, 621 
certificate    of,    regarding   inability    of    Russian    magistrates    to    administer 

oaths,  138 
signature  of  magistrate  affixed  to  affidavit  verified  by  a  notary  public,  151 
translation  of  an  affidavit  verified  by  a  notary,  150 
OATHS,  ADMINISTRATION  OF  (see  also  AFFIDAVITS) 
see  Compendium,  733-734 

acknowledgment  of  married  woman  before  commercial  agent  sufficient,  283 
consular  agents  competent  for,  266 
consul  not  officer  authoried  for  the,  so  as  to  be  competent  to  take  oath  of 

consul  before  entering  upon  discharge  of  functions,  294 
commissioners  appointed  to  take  testimony  have  authority  for  the,  104 
OFFICIAL  ACTS 

see  Compendium,  755-756 

of  consul  in  shipping  matters  binds  nationals,  189 

consul's  certificate  competent  as  evidence  of,  83 

courts  will  not  make  subject  of  comment  unnecessarily,  292 

person  acting  under  commission  not  responsible  for  acts  done  under  it,  468 

consul  can  not  be  held  for  contract  founded  on  credit  of  his  government,  466 

attempt  to  recover  damages  from  estate  because  of  refusal  of  intestate  to 

appoint  as  acting  consul,  355 
validity  of  consul's  discharge  of  seamen,  373 

conclusiveness  of  consul's  acts  in  discharging  seamen,  83,  89,  90,  107,  192, 
223,  304,  373,  609,  629 

803 


INDEX     . 

OFFICIAL  ACTS— Continued 
fourts  rofiise  to  examine,  198 
eourts  of  reoeiving  state  will  not  examine,  296 
examined  by  courts,  199 
of  consul,  examination  of  by  courts,  71 
jurisdiction  of  federal  courts  muat  extend  to  all  acts  of  consul  and  state 

courts  cannot  take  jurisdiction  for  acts  which  they  consider  unofficial,  348 
what  fees  are  official,  379 

French  treaty  only   applied  when  consuls  give   certified  copi«8  in  the   dis- 
charge of  their  specific  consular  powers,  401 
means   at   disposition   of  individual  to   obtain   redress  for  injury   resulting 

from,  2 
authenticating  and  noting  a  marine  protest  is  an  official  consular  service, 

614 
consul  who  had  obtained  money  for  his  government  acted  officially  and  is 

not  personally  liable,  201 
jurisdiction  of  courts  of  receiving  state  in  case  of  (see  Compendium,  756) 
not  amenable  to  jurisdiction  of  receiving  state  in  case  of,  2 
previous  treaty  stipulation  necessary  to  subject  consul  to  jurisdiction  of  re- 
ceiving state,  in  case  of,  2 
consul  not  responsible  for  illegal  commitment  for  extradition,  91 
citizens  of  receiving  state  have  no  concern  with  how  consul  conducts  his 
office  and  what  fees  he  charges — the  redress  lies  without  the  laws  of  the 
receiving  state,  112 
courts  of  receiving  state  declare  fees  collected  not  according  to  regulations 

of  sen(Mng  state,  252 
right  of  consul  to  recover  money  expended,  227 

every  service  is  official  which  consul  may  not  refuse  to  perform,  649 
responsibility  of  consul  for,  previously  to  filing  bond,  391 
no  invariable  rule  to  determine  what  services  are  official,  613 
of  consul  can  be  better  reviewed  by  court  of  sending  state,  199 
acts    of    consul    in    superintending    sale    of    ship    were    exclusively    official 
acts,  319 
OFFICIAL  CHARACTER  (see  also  NOTARY  PUBLIC) 
consul  certified,  of  alcade,  159 

certificates  of  acknowledgments  evidence  of,  of  persons  giving,  284 
consul  certifies  to  official  character,  440 

of  foreign  magistrates,  certificate  of,  consul  has  not  authority  to  give,  98 
of  foreign  notaries,  184 

not  duty  of  conHul  to  attest  signatures  of  foreign  functionaries,  351 
OFFICIAL  SERVICES   (see  FEES;   OFFICIAL  ACTS) 
ORIGIN  OF  CONSULS  474,  545,  613 
PASSPORT 

see  Compendium,  739 
not  evidence,  163 
PATENT 

application  for,  not  to  be  sworn  before  a  consul,  483 
assignment  of  before  a  consul,  282 

foreign  notary  not  authorized  to  take  oaths  not  competent  to  take,  621 
must  have  applicant's  oath,  621 
POLICE  POWER 
over  consuls,  196 

804 


INDEX 

PORTO  RICANS 

protection  of,  642 
POWERS  OF  ATTORNEY 
Bee  Compendium,  728-729 
acknowledgment  of  certificate  of  admitted,  82 
acknowledgment  of   consular  officers  valid,   359 
acknowledgment  of  before  deputy  consul-general  valid,  354 
certification  of  which  had  been  executed  before  a  foreign  notary  public,  98 

PRESENTS 

U.  S.  consul  may  not  receive,  647 
PRESIDENT  {see  REGULATIONS) 
PRISONERS  OF  WAR 

protection  of  nationals,  when,  425 
PRIVILEGES  {see  IMMUNITIES) 
PRIZE  PROCEEDINGS 

opinion  of  Portalis  discussed,  68 

right  of  consuls  to  represent  interests  of  nationals,  69,  111,  151,  253 
PRIZES 

jurisdiction  of  consuls  in  cases  of,  161,  173 
PROCURATION,  ACTS  PERFORMED  BY 

acknowledgment  of  power  of  attorney  taken  before  vice  and  deputy  consul 
general,  82 

acknowrledgment  to  power  of  attorney  before  deputy  consul  general,  353 

act  authorizing  delegation  of  authority,  383 

consular  agent  acts  as  representative  of  consul,  179,  255 

authentication  of  extradition  proceedings  by  a  vice-consul,  188 

invoices  may  be  verified  by  consuls  of  a  third  state  or  by  two  merchants,  626 

jurisdiction  over  seamen  conferred  by  act  of  1840  cannot  be  delegated,  334 

representation  of  interests  of  third  state,  626 

French    consul    authorized    by    treaty    to    appoint    a    delegate    to    represent 
French  heirs,  317 
PROPERTY 

of  absent  nationals  delivered  to  consul  {se«  ESTATES) 
PROTECTION   {see  also  INDIVIDUAL) 

of  consul  from  assault,  410,  463 

duties  of  consul  to  afford,  to  nationals,  435 

of  nationals  made  prisoners  in  time  of  war,  425 

of  consul's  person  and  property  to  be  sought  under  state  laws  alone,  609 

of  individuals  requires  sending  state  not  to  permit  exercise  of  the  consular 
office  by  persons  not  regularly  appointed,  621 

where  seamen's  wages  have  been  misappropriated  redress  must  be  sought 
from  consul  or  sureties  of  his  bond,  612 

of  nationals  from  being  swindled  by  insurance  company,  435 

treaty  with  Austria  Hungary  authorizes  consul  to  intervene  before  courts  to 
protect  nationals,  435 
PROTECTION  OF  INDIVIDUAL  {see  INDIVIDUAL) 
PROTECTION  OF  NATIONALS 

see  Compendium,  722 

consul  intervenes  and  secures  release  from  prison,  623 

prevents  use  of  sovereign's  name  by  fraudulent  company,  434 

entrusted  to  consuls  of  third  state  during  war,  627 

consuls  may  not  interfere  in  trial,  582 

805 


IxXDEX 

PROTEST 

autht'iitioating  and  noting  of  marine  protests  is  an  official  consular  service, 
t>14 
PROTEST  OF  CONSUL  (see  also  JURISDICTION  OVER  SEAMEN) 

see  Compendium,  742-744 

does  not  deprive  court  of  juriBdiction,  292,  293,  326 

extract  from,   286 

courts  inclined  to  give  heed  to,  198 

court  takes  jurisdiction  in  spite  of,  219,  235,  296,  374,  446 

court  refuses  to  take  jurisdiction,  54,  252,  285,  319,  326,  440 

Text  of  given,  325 
PROVISIONAL  CONSUL 

acknowledgment  sworn  before  allowed  to  be  filed,  128 
PUBLIC  MINISTER 

meaning  of,  41,  53 

consul  is  not  (see  NATURE  OF  CONSULAR  OFFICE),  53 
PUNISHMENT    OF    CONSULS    (see    also    JURISDICTION    OVER    CON- 
SULS) 

indictable  felony  not  to  pay  draft  for  moneys  belonging  to  government,  524 

regulations  governing  proceedings  against  consuls,  611 

means  of  procedure,  520,  524 
RECEIVING  STATE,  LAWS  OF 

consuls  must  obey,  505,  639,  640 

consuls  must  not  violate  the  spirit  of,  551 
RECIPROCITY 

application  of  the  rule  of,  depends  on  congress,  and  judiciary  not  compe- 
tent, 29 

executive  not  competent  to  make  application  of,  477 

treatment,  291,  476 
RECOGNITION  OF  A  FOREIGN  STATE 

appointment  of  a  consul  equivalent  to,  518 
RECRUITS   (see  ENLISTMENT  OF  RECRUITS) 
REGULATIONS,  CONSULAR 

see  Compendium,  768-770 

acts  of  heads  of  executive  department  presumably  acts  of  president,  379 

department  of  state  more  competent  than  department  of  treasury  to  decide 
what  fees  are  official,  379 

determination  of  wliat  fees  are  official,  616 

president  cannot  declare  unofficial  duty  imposed  on  consul  by  congress,  649 

consuls  subject  to  regulations  of  the  proper  head  of  department,  518 
REMEDY  FOR  ACTS  OF  CONSULS  (see  PUNISHMENT  OF  CONSULS, 

PROTECTION  OF  INDIVIDUAL) 
REPATRIATION    (see  DESTITUTE  SEAMEN) 
REPORTS,  CONSULAR 

lists  of  arrivals  of  shijis  returned,  320 
REPRESENTATION 

consul  appears  in  court  to  claim  property  of  his  nationals,  19,  148,  199,  293, 
321 

of  absent  nationals  in  court  (see  also  PRIZE  PROCEEDINGS),  6,  129,  199, 
247,  333 

consul  competent  to  represent  interests  of  nationals,  6,  320 

806 


INDEX 

REPRESENTATION— Continued 

claiiiiB  tlmt  capture  of  prize  waB  in  violation  of  the  neutrality  of  receiving 

state,  72 
consul  has  no  status  in  court  as  a  party  but  appears  informally  and  has  a 

right  to  be  heard,  160 
of  sending  state  in  court,  72,  119,  320 
when  consul  represented  absent  nationals  in  court  his  taxable  costs  are  to 

be  paid  before  delivery,  293 
of  the  interests  of  a  third  state,  626 
REPRESENTATIVE  FUNCTIONS 

consuls  not  competent  to  grant  enemy's  vessel  exemption  from  seizure,  190 
consul  does  not  exercise,  426 

consuls  not  competent  to  make  claim  for  violation  of  neutrality,  17 
REPRESENTATIVE  OR  POLITICAL  CHARACTER  {see  NATURE  OF 

THE  CONSULAR  OFFICE) 
RESIDENCE,  CONSULAR 

inviolability  of,  3 
RESPONSIBILITY   OF  CONSUL   {see  also  OFFICIAL  ACTS) 

not  duty  of  government  to  give  consul  advice  as  to  the  personal  responsi- 
bility which  his  action  may  have  incurred,  594 
must  pay  draft  for  public  moneys,  524 
for  acts  in  relation  to  employment  of  visages  of  seamen,  612 
RESPONSIBILITY  OF  GOVERNMENT  FOR  ACTS  OF  CONSUL 
see  Compendium,  771-772 
when  directs  to  make  certain  purchases,  226 
government  not  responsible  for  illegal  acts  of  consul,  496 
payment  of  wages  of  interpreter,  30-33 
when  contravening  laws  of  the  receiving  state,  549 

government  not  responsible  for  consul's  misappropriation  of  seaman's  wages 
612 
RETURN  HOME  OF  CONSULS 

three  months  salary  allowance  for,  478 
RETURN  OF   CRIMINALS    (see  CRIMINALS) 
RETURN  OF  DESTITUTE  SEAMEN 

return  of  seamen  accused  of  crime  not  included  in  the  act  concerning,  557 

duties  of  consul  regarding,  459 

seaman  does  not  lose  right  to,  when  discharged  with  his  consent  because  of 

illness,  89 
deposit  of  ship's  papers  meant  to  secure,  185 

value  of  consuls  certificate  in  suit  because  of  masters  refusal  to  undertake, 
283 
RIGHTS  OF  CONSULS   {see  IMMUNITIES) 
SAILORS  {see  SEAMEN) 
SALARY 

see  Compendium,  765-766 

claim  of  vice  consul  for  salary  of  consul  general  while  absent,  447 

time  at  which  consul's  salary  begins,  379 

right  to,  previously  to  executing  bond,  391 

congress  alone  has  power  to  provide  for,  84 

paym.ent  of  consul's,  410 

three  months '   salary-  allowed   for  consul 's  return  home,  478 

when  consul  may  receive,  for  two  position,  595 

807 


INDEX 

SA'LA'RY—Coniinued 

right  to  recover  consul's  salary  paid  to  vice  consul,  410 
three  month  's  salary  allowed  to  widows  of  consuls  dying  abroad,  478 
SEAL,  CONSULAR 

consular   agent   subordinate  to   commercial   agent  properly  used   seal   con- 
taining -words  U.  S.  Commercial  Agency,  328 
impression  must  be  distinct  to  impart  a  legal  authority,  25 
dues  not  prove  itself  except  in  certain  cases,  322 
SEALING  OF  CARS 

consuls  must  do,  619 
SEAMEN  (see  also  DISCHARGE  OF  SEAMEN;  JUEISDICTION  OVER  SEA- 
MEN;  SEAMEN,   CARE   OF) 
nature  of  the  complaints  to  be  submitted  to  consul,  206 
Cubans  and  Filipinos  are  not  American  seamen,  640 
imprisonment  of,  by  consul,  to  be  presumed  to  be  necessary,  98 
imprisonment  of,  condemned,  333 

imprisonment  of,  with  co-operation  of  consul  will  not  relieve  master  of  re- 
sponsibility, 121,  164,  296 
nationality  of,  to  be  considered  that  of  flag,  84,  175,  259,  289,  640 
Porto  Rican  is  an  American  seaman,  640 
protection  of  when  made  prisoner  in  time  of  war,  425 
punishment  of,  304 
right  to  see  the  consul,  205,  284 
SEAMEN,  CARE  OF 
see  Compendium,  738 
American  courts  will  protect,  84 
act  of  1803  does  not  allow  consuls  to  aid  destitute  seamen  from  a  vessel 

of  war,  484 
court  reverses  consuls  action  and  declares  seaman  destitute,  612 
prepajrment  of  wages,  297 

discharge  of  sick  seaman  and  payment  of  expenses,  189 
assent  to  discharge  was  not  intended  to  make  sick  sailor  lose  right  to  be 

returned  home,  89 
duty  of  consul  to  return  minor  stowaway  to  parents,  252 
wages,  185 

responsibility  of  consuls  in  use  of  wages  of  seaman,  612 
SECURITY   FOR  COSTS 

consul  need  not  give,   112 
SHIP    (see  VESSEL) 
SHIPPING,  CARE  OF 
see  Compendium,  738 
consul  sells  damaged  goods,  439 
when  consul  has  authority  to  sell  ship,  496 
SHIP'S   PAPERS 

deposit  of,  with  the  consul,  179,  184,  231,  294,  373,  487,  488,  596 

consul  hag  not  right  to  detain,  to  compel  payments  except  in  certain  cases, 

589 
eoDSul  cannot  detain  papers  of  ship  suspected  of  being  engaged  in  slave 

trade,  590 
master  liable  for  refusal  to  deposit,  554 
SIGNATURES,  VERIFICATION   OF   (see  AUTHENTICATION  OF  SIG- 
NATURES) 

808 


INDEX 

STATE  COURTS 

see  Compendium,  761-762 

claim  to  the  jurisdiction  of  federal  courts  may  be  made  at  any  stage  of  the 
proceedings,  256 

jurisdiction  not  withdrawn  when  party  becomes  consul,  219 

have  jurisdiction  over  suits  brought  by  consuls,  218,  320,  447 

have  jurisdiction  over  suits  concerning  consuls  in  civil  suits,  139,  343 

consul  subject  to  commitment  awaiting  requisition,  196 

in  case  of  Davis  v.  Packard  the  exclusion  of  the  jurisdiction  of  the  state 
courts  was  not  put  upon  the  ground  of  the  exclusive  jurisdiction  of  the 
supreme  court  but  upon  the  act  of  1789,  169 

consuls  may  bring  suits  in,  258 

consuls  may  commence  suits  in,  414 

not  excluded  from  jurisdiction  over  suits  by  or  against  consuls,  318 

reasons  why  should  not  have  jurisdiction  over  consuls,  348 

previous  express  exclusive  of  jurisdiction  over  suits  against  consuls  repealed, 
164 

do  not  have  jurisdiction  over  suits  against  consuls,  119,  135,  254,  258,  325, 
349,   447 

do  not  have  jurisdiction  even  for  unofficial  acts,  348 
STATE  DEPARTMENT   (see  DEPAETMENT  OF  STATE) 
STATE  OFFICERS 

consuls  are  for  certain  purposes,  322 
STATUTES  RELATING  TO  CONSULS 

interpretation  of,  192-196,  617 
SUBJECTS 

receiving  state  may  refuse  to  received,  as  consuls,  106 
SUBPOENA   (see  DUCES  TECUM) 
SUMPTUARY  TAXES 

exemption  of  consuls  from,  3 
SUPERIOR  CONSULAR  OFFICERS 

requisitions  for  extradition  to  be  made  by,  92 
SUPREME  COURT   (see  FEDEEAL  COURTS) 
SURVEY  OF  VESSELS 

consuls  competent  to  order  in  behalf  of  master,  316 

acts  officially  in  ordering,  319 
TAXES 

which  consuls  are  exempted  from,  3 

exemption  from,  not  essential,  20 
TELEGRAPHIC  CORRESPONDENCE 

right  to  employ,  3 
TERMINATION 

see  Compendium,  774 
TERMINOLOGY 

meaning  of  consul,  vice  consul,  commercial  agent  and  consular  agent,  518 
TESTIMONY    (see  also  DEPOSITIONS) 

courts  will  not  require  testimony  which  usages  of  the  receiving  state  do  not 
admit  of,  103 

courts  require  the  best  obtainable,  103 
TESTIMONY,  GIVING  OF,  BY  CONSULS 

see  Compendium,  760 

consuls  not  required  to  appear  and  give,  2 

809 


INDEX 

TESTIMONY,  GIVING  OF,  BY  CONSULS— Continued 

British    minister    complains    that    consuls    not    allowed    to    give,    in   self    de- 
fense, 5S3 

French  consul  exempted  by  treaty  from  compulsory  process  to  give  testi- 
monr,  145 

prisoner  detained  for  extradition  has  right  to  cross-examine  consul  making 
complaint,  155 

in  suits  brought  in  consul's  name  by  government,  231 

treaty  may  exempt  consuls  from  appearing  in  court  to  give,  144,  418 

subject  to  ordinary  rules,  582 
TESTIMONY  OF  CONSULS 

in  suits  brought  in  their  name  for  the  government,  231 
TRADE 

proper  subject  for  employment  of  an  ambassador,  53 

with  the  enemy,  licenses  to   {see  LICENSES) 

consuls  engaged  in  enjoy  no  privileges  not  accorded  other  merchants,  7,  19, 
20,  98,   154,   198,  213,  310 
TRADE,  CONSULS  ENGAGED  IN  {see  CONSULAK  AGENTS) 
TRADING  CONSULS  {f^re  CONSULAR  AGENTS) 
TRANSLATIONS 

see  Compendium,  728 

authentication  of,  104 

of  atTidavits  sworn  before  foreign  magistrates,  150 

of  consuls  not   on  oath  have  no  greater  validity  than  those  made  by  any 
respectable  individual,  104 
TREASURY  DEPARTMENT 

not  competent  to  review  more  than  the  arithmetical  accuracy  of  the  account 
of  consul  discharging  a  seaman,  609 

appointment  of  special  agents  authorized,  619 
TREATIES 

see  Compendium,  724-725,  748,  750-752 

courts  bound  to  recognize,  10 

stipulation  in,  required  for  surrender  of  deserters,  399 

treaty  made  to  apply  to  state  embracing  contracting  state,  602 

consul  must  appeal  to  court  to  secure  enforcement  of,  652 

observance  of,  367,  402,  423 

course  to  pursue  when  considered  that  treaties  are  not  observed,  402 

stipulation  giving  consul  jurisdiction  over  seamen  not  intended  to  oust  local 
tribunals  in  all  cases,  10 
TREATY-MAKING-POWERS 

limits  of,  141,  151,  155,  641 
VESSELS   (see  also  WARSHIP) 

enemy's  (see  LICENSE) 

fee  for  discharge  of  seaman  from  foreign  built,  173 

nationality  of  American  owned  foreign  built  yacht,  622 

Amr-rifan  govomment  gives  privileges  of  American  navigation  to,  owned  by 
conguls,  316 
VICE-CONSUL 

see  Compendium,  766-767 

appointments  of,  383,  384,  540 

definition  of,  383 

meaning  of  term,  528 

810 


INDEX 

VICE-CONSUL— Conttnued 

mentioned,  188 

formerly  not  subordinate  and  temporary  officers,  389 
WAGES  OF  SEAMEN  {see  DISCHARGE  OF  SEAMEN) 

consul  has  no  authority  to  receive,  of  deserters,  603 

prepayment  of,  298 
WAR   {see  MILITARY  SERVICE;   ENLISTMENT) 

see  Compendium,  748-749 

representation  of  the  interests  of  a  third  state  during,  626 
WARSHIP 

power  of  consul  to  call  upon,  to  detain  criminal,  578 

consul  calls  upon  to  seize  vessel  with  suspicious  papers,  581 
WIDOW  OF  CONSUL 

entitled  to  three  months'  salary,  478 
WITNESS 

consul  not  compelled  to  appear  in  court  as,  418 
WITNESS,  CONSUL  AS   {see  TESTIMONY) 
WRECKS 

consul  acts  as  auctioneer  to  sell  damaged  goods,  439 

property  from,  deposited  with  consul,  376 


811 


This  book  is  DUE  on  the  last  date  stamped  below 


JAN    L4   1^:^30 


lHAV  2  1    1932 
^^f^  (^       1932 

.:'Ji\  1  2  1935 


MAIN 


OSC 


I  A.M. 

I    7|fl|allOll|H>^l. 


FEB  2f; 

fEB  16 


Form  L  9-15m-ll,'27 


OAN  DESK 


23  1964 


■^1 


112131.^ 


lO'uW 


1975 
197S 


